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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A   TREATISE 


ON    THE    LAW    OF 


CARRIERS  OF  PASSENGERS 


IN   TWO  VOLUMES 

VOL.  I. 


BY 

NORMAN    FETTER 

In 
Author  of  a  Handbook  on  "Equity  Jurisprudence' 


St.  Paul,  Minn. 
WEST  PUBLISHIN(]    CO. 

1897 


^1 


1897 


Copyright,  1897, 

BV 

Ts^ORMAN    FETTER. 


d 


PREFACE. 


The  law  pertaining  to  carriers  of  passenjjers  has  jjrown 
with  the  growth  of  the  carrying  business;  and  the  great 
bulk  of  the  litigated  cases,  in  the  United  States  at  least, 
has  been  decided  since  the  close  of  the  Civil  War.  With 
but  few  principles  of  the  old  common  law  to  guide  them, 
and  with  but  little  assistance  from  the  legislative  depart- 
ment, the  courts  have  been  compelled  to  grapple  with  new 
and  interesting  questions  not  foreclosed  by  the  history  of 
the  past,  "By  free  reasoning  upon  the  actual  facts  of  life," 
and  guided  by  broad  and  comprehensive  considerations  of 
justice  and  public  policy,  the  courts  have  practically  created 
a  new  common  law,  instinct  with  all  the  vitality  of  youth. 

An  effort  has  been  made  in  the  following  pages  to  set 
forth,  in  an  orderly  manner,  the  living  law  on  this  subject 
as  it  exists  to-day,  and  to  give  a  concise  account  of  its  devel- 
opment, and  of  the  reasons  which  have  moved  the  judges  to 
its  adoption.  To  accomplish  this  object,  the  Reports  have 
been  ransacked  volume  by  volume,  and  an  attempt,  at  least, 
has  been  made  to  fuse  and  weld  the  great  mass  of  material 
thus  obtained  into  a  clear  and  coherent  narrative.  The 
conflict  uf  opinion  and  the  errors  inevitably  occurring  in 
blazing  the  way  through  unexplored  regions  of  jurispru- 
dence have  been  noted;  but  no  attempt  has  been  made  to 
magnify  ai)parent  conflict  of  judicial  opinion  into  a  real  con- 
flict. 

In  taking  leave  of  a  task  which  has  occupied  several  years, 
it  is  impossible  to  i-efi-aiii  from  paying  a  tiibute  of  respect 

(iii) 


729678 


IV  PKXFAC'E. 

to  the  luj^ged  sense  of  justice  whicli  has  pervaded  the  great 
body  of  the  judges  in  announcing  the  law  on  this  subject. 
It  is  but  the  statement  of  a  truism  to  say  that  the  law  which 
they  have  created  in  grappling  with  concrete  questions  day 
by  day,  and  year  by  year,  judge-made  though  it  be,  is  more 
serviceable  and  more  essentially  just  than  any  Code  pro- 
mulgated by  the  legislative  department  on  the  advent  of 
railways  could  possibly  have  been. 

In  conclusion,  the  writer  hereof  acknowledges  an  indebt- 
edness to  Mr.  N.  M.  Thygeson,  of  the  St.  Paul  bar,  for  many 
practical  suggestions  made  during  the  progress  of  the  work. 

N.  F. 

St.  Paul,  Minn.,  Sept.  22,  1897. 


TABLE  OF   CONTENTS 

OF 

VOLUMES  1  AND  2. 


VOLUME  1. 


CHAPTER  I. 

GENERAL  PRINCIPLES    GOVERNING   CARRIERS   LIABILTY. 

{    1.  Liability  Depends  on  Negligence  or  Willful  Wrong. 

2.  Same— History  of  Rule. 

3.  Negligence  Defined. 

4.  Essential  Elements  of  Negligence. 

5.  Same— Duty  to  Exercise  Care. 

6.  Same— Inadvertent  Breach  of  Duty. 

7.  Same — Proximate  Cause  of  Injury. 

8.  Degree  of  Care  Required  of  Passenger  Carriers. 

9.  Same — Reason  of  the  Rule. 

10.  Standard  of  Care. 

11.  Higliest  Practicable  Care. 

12.  Unforeseen  Accidents. 

13.  Duty  to  Adopt  New  Devices— Financial  Ability. 

14.  Custom  and  Practice  of  Other  Carriers. 

15.  Act  of  God  and  of  Public  Enemy. 

IG.    Same  Degree  of  Care  Required  Whatever  Mode  of  Conveyance 
Adopted. 

17.  Same— Freight  and  Construction  Trains. 

18.  Same— Street  Cars. 

19.  Same — Stage  Coaches. 

20.  Same— Vessels. 

V.  1  FET.CAR.PAS.  (v) 


Vi  TABLE    OF    CONTENTS. 

§  21.  Ramc^Passonser  Elovatoi's. 

22.  No  Distinc-fion  between  Different  Classes  of  Passengers. 

23.  Duty  Extends  to  Vehicles  Other  than  the  One  in  Which  the  Pas- 

senger is  Carried. 

24.  Statutory  Liability. 

25.  Same— California  Code. 

26.  Same— Goorfiin  Code. 

27.  Same— Nebrasl^a  Statute. 
2S.  I'rovlnce  of  Court  and  .Jury. 


CHAPTER  II. 

DUTY  OF  CARE  AS  TO  MEANS  OF  TRANSPORTATION. 

§  29.  Duty  as  to  Roadbed. 

30.  Same— Negligence  of  Employes  and  Independent  Contractors, 

31.  Same— Act  of  God. 

32.  Same — Guarding  against  Act  of  God. 

33.  Same— Acts  of  Public  Enemy. 

34.  Same — In.spection  and  Repair. 

35.  Same — Obstructions. 

36.  Same— Cattle  on  Track, 

37.  Same— Street-Car  Tracks. 

38.  Duty  as  to  Vehicles. 

39.  Same— Latent  Defects. 

40.  Same — Liability  for  Negligence  of  Manufacturer. 

41.  Same — Inspection. 

42.  Same — Guarding  Car  Windows. 

43.  Same— Car  Platforms. 

44.  Same— Motive  Power  for  Street  Cars. 

45.  Same— Statutory  Requirements. 

CHAPTER  III. 

DUTY  OF  CARE  IN  CONSTRUCTION  AND  MAINTENANCE  OF 
STATIONAL  FACILITIES. 

§  46.    Extent  of  Duty. 
47.    Degree  of  Care. 
4.y.    Defects  in  Station  Buildings. 


TABLE    OF    CONTENTS.  Vll 

§  49.  Station  riatlonns. 

.".)).  Same— Ad.justmont  Bct\won  riatforiu  and  Trains. 

r»l.  Approaclit's. 

52.  Ownership  by  Third  Persons. 

.")o.  Snow  and  Ice. 

54.  Lights. 

CHAPTER  IV. 

DUTY    OF   CARE   IN    RECEIVING    AND    DISCHARGING    PAS- 
SENGERS. 

§  55.    Degree  of  Care  Reiiuired.     . 

56.  Safe  Facilities. 

57.  Same— Duty  to  Afford  Passengers  the  Use  of  Stational  Fa- 

cilities. 

55.  Same— Invitation  to  Alight. 

59.  Same— Failure  to  Bring  Train  up  to  Platform. 

(■)().  Same — Personal  Assistance, 

til.  Same— Moving  Trains  on  Intervening  Tracks, 

tili.  Same— Existence  of  Safe  and  Unsafe  Exit. 

t)3.  Same— Freight  Trains. 

64.  Same— Street  Cars. 

65.  Same — Vessels. 

tiC).    Reasonable  Time  to  Get  On  and  Off.' 

67.  Same— Signals  for  Starting. 

68.  Same— Sudden  Movement  of  Train  after  Invitation  to  Get  On 

or  Off. 
(')!>.    Same— Direction  to  Leave  Moving  Train. 

70.  Same— Specific  Rules  as  to  Receiving  and  Discharging  Pas- 

sengers. 

71.  Same— Freight  Trains. 

72.  Same— Street  Cars. 
7o.    Same— Elevators. 

CHAPTER  V. 

DUTY  OF  CARE  DURING  TRANSPORTATION. 

§  74.    Degree  of  Care. 

75.  Formation-  of  Trains— Concussion  of  Cars. 

76.  Same— Position  of  Cars  in  Train. 


\iii  TABLE    OF    CONTENTS. 

§  77.  Same — Street  Cars, 

78.  Rate  of  Speed. 

71.».  Same— Freight  Trains. 

80.  Same— Street  Cars. 

81.  Suddeu  Jerlc  of  Cars. 

8:.'.  Crowded  Cars  aud  Platforms. 

80.  Same— Street  Cars. 

84.  Same— Stagecoaches. 

85.  Permitting  Passenger  to  Ride  on  Platform  of  Street  Car. 
80.  Yostlbided  Trains  and  Sleeping  Cars. 

87.  Slamming  of  Car  Door. 

88.  Collisions— Between  Trains  Running  on  Same  Track. 
8'J.    Same— Between  Trains  at  Grade  Crossings. 

90.  Same— At  Street-Railway  Crossings. 

91.  Same— Between  Street  Car  and  Vehicle. 

9:.'.    Other  Breaches  of  Carrier's  Duty  during  Transportation. 

93.  Statutory  Provisions  against  Fires  and  Explosives  ou  Trains. 

94.  Stagecoaches. 

CHAPTER  VI. 

DUTY  OF  CARE  IN  EMPLOYMENT  OP  SERVANTS. 
§  95.    Must  Furnish  Careful  and  Competent  Employes. 

CHAPTER  VII. 

DUTY  TO  GUARD  AGAINST  ACTS  OF  THIRD   PERSONS. 

§    96.  Principle  Governing  Liability. 

97.  Assault  on  Passenger. 

98.  Same — Knowledge  of  Danger. 

99.  Same — By  Insane  Passengers. 

100.  Abusive  Language  and  Disorderly  Conduct. 

101.  Other  Wrongs  to  Passengers. 

102.  Crowds  at  Stations. 

103.  Interference  with  Passengei'S  Embarking  on  and  Alighting 

from  Trains. 

104.  Train  Wrecking. 

105.  Missiles  Thrown  from  Cars. 


TABLE  OF    CONTENTS.  .  IX 

CHAPTER   Vm. 

DUTY   TO   PASSENGERS    UNDER   DISABILITY. 

§  106.  Passenger  under  Disability  Entitled  to  More  Attention  than 
Ordinai-y  Passenger. 

107.  Sick  and  Infirm  Passengers. 

108.  Same— Duty  in  Receiving  and  Discharging. 

109.  Same— Ejection  and  Carrying  Past  Destiuaiion. 

110.  Children. 

111.  Intoxicated  Passengers. 

112.  Same — Ejection. 

CHAPTER  IX. 

PROXIMATE  CAUSE. 

I  113.  Definition  and  General  Principles 

114.  Province  of  Court  and  Jury. 

115.  Examples  of  Proximate  Cause. 

116.  Examples  of  Remote  Cause. 

117.  Intervening  Cause. 

118.  Coml3ined  and  Concurring  Causes. 

119.  Particular  Injuries— Distinction  between  Actions  on  Contract 

and  in  Tort. 

120.  Same— Exposure  from  Failure  to  Carry  Passenger  to  Destina- 

tion. 

121.  Same — Dangers  Encountered  from  Failure  to  Carry  to  Destina- 

tion. 

122.  Same— Unusual  Consequences  of  Personal  Injuries. 

123.  Same— Predisposition  to  Disease. 

124.  Same— Pecuniary  Loss. 

CHAPTER  X. 

CONTRIBUTORY  NEGLIGENCE. 

%  12.">.    Tlie  Common-Law  Doctrine. 

126.  Willful  Injuries. 

127.  Definition. 


X  TABLE    OK    CONTENTS. 

§  12S.  Dfjireo  and  Standard  of  Care. 

121).  Duty  to  Use  Senses  and  Ascertain  Facts. 

130.  Reliance  oh  Carriei-. 

131.  Same— On  Carrier's  Servants. 

132.  T'se  of  Station  Platform— Knowledge  of  Defects. 

133.  T'sins  I'nli.aiited  Premises. 

134.  Standing,'  near  Ed^e  of  Station  I'latform. 

135.  Standing  betAveen  Car  Tracks. 

1SC>.  Cro.ssing  Railroad  Track  at  Station. 

137.  Same— At  Intermediate  Station. 

3.3S.  Same— Stepping  from  Car  to  Track. 

131).  Same— Street  Cars. 

140.  AValking  along  or  near  Track. 

141.  Crawling  imder  or  between  Cars. 

142.  Boarding  Car  Ahead  of  Time. 

143.  Boarding  Car  Not  Drawn  up  at  Station  Platform. 

144.  Boarding  or  Leaving  Train  on  Wrong  Side,  or  by  Improper 

Entrance  or  Exit. 

145.  Same— Front  Platform  of  Street  Car. 

146.  Alighting  at  Dangerous  Place— Invitation. 

147.  Same— .Tumping  from  Car  Steps  to  Ground. 

14S.  Boarding  or  Alighting  from  Stationary  Street  Car. 

141).  Boarding  or  Alighting  from  Moving  Train, 

150.  Same— Boarding  Moving  Train. 

151.  Same— Alighting  from  Moving  Train. 

152.  Same— Aggravating  Circumstances, 

153.  Same— Mitigating  Circumstances. 

154.  Same— Advice  or  Command  of  Tiain  Hands. 

155.  Same— Statutory  Provisions. 
15(i.  Boarding  Moving  Street  Car. 

157.  Same— Alighting  from  Moving  Street  Car. 

15S.  Same— Front  Platform. 

159.  Same— Passenger  Incumbered  with  Packages. 

IfiO.  Passengers  on  Vessels, 

161.  Boarding  Passenger  Elevator. 

162.  During  Transportation. 

163.  Placing  Hand  in  Door  .Tamb. 

Itt4.  Projecting  Limb  or  Head  Outs,ide  of  Car. 

165.  Standing,  or  Occupying  Dangerous  Seat,  in  Car. 

166.  Passing  from  Car  to  Car  on  Moving  Train, 


TABLE    OF    CONTENTS.  XI 

§  107.  Riding  on  riatform. 

168.  Same— Street  Car. 

169.  Same— Front  Platform  of  Street  Car. 
lT<i.  Hiding  on  Footboard  or  Steps  of  Car. 
171.  Riding  in  Baggage  Car. 

372.  Riding  in  Otlior  Places  of  Alleged  Danger. 

17."'..  Riding  on  Freight  and  Construction  Trains. 

174.  Riding  on  Top  of  Cars. 

3  7.").  Riding  on  Locomotive  or  on  Tender. 

170.  Riding  on  Hand  Car. 

177.  Statutory  Prohibition  against  Riding  in  Dangerous  Places. 

178.  Saving  Human  Life. 

179.  After  the  Injury. 


CHAPTER  XI. 

CONTRIBUTORY  NEGLIGENCE  (ContiuuedJ-PERSONS  UNDER 

DISABILITY. 

§  18().  The  General  Rule. 

181.  Persons  under  Physical  Disability. 

182.  Same— Women. 

183.  Persons  with  Defective  Reasoning  Faculties— Children. 

184.  Same— Intoxicated  Persons. 

185.  Persons  in  Position  of  Peril. 

186.  Same— Defendant  must  be  Guilty  of  Negligence. 

187.  Same— Apprehension  of  Danger  nmst  be  Reasonable. 

188.  Same— Avoiding  Inconvenience. 


CHAPTER  XII. 

CONTRIBUTORY  NEGLKiENCE  (Connnued)-PROXI]MATE 

CAUSE. 

189.  Plaintiff's  Negligence  must  be  a  Proximate  Cause  of  Injury, 

190.  Defendant's  Negligence  after  Discovery  of  Plaintiff's  Peril. 


Xii  TABLE   OF    CONTENTS. 


CHAPTER  XIII. 

CONTRIBUTORY  NEGUGP^XCE  iContinned)— TARIATIONS 
FROM  COMMON-LAW  RULE. 

19L  Admiralty  Rule. 

192.  Comparative  Negligence. 

193.  Rule  in  Tennessee. 

194.  Rule  in  Georgia  and  Florida, 

195.  Rule  in  Nebraska. 


CHAPTER  XIV. 

NEGLIGENCE  OF  THIRD  PERSONS— IMPUTED  NEGLIGENCE. 

§  196.  Concurrent  Negligence  of  Third  Persons. 

197.  Imputed  Negligence. 

198.  Same — Of  Carrier  or  Driver  to  Passenger. 

199.  Same— Of  Parent  to  Child. 

200.  Same— Of  Husband  to  Wife. 

201.  Same— Of  Wife  to  Husband. 

CHAPTER  XV. 

WHO  ARE  .COMMON  CARRIERS. 

§  202.    Common  Carrier  of  Passengei*s  Defined. 

203.  Railroad  Companies. 

204.  Union-Depot  Companies. 
20.5.    Sleeping-Car  Companies. 

206.  Sti-eet-Railroad  Companies. 

207.  Proprietors  of  Road  Vehicles.  * 

208.  Vessel  Owners. 

209.  Passenger  Elevators. 


TABLE    OF    CONTENTS.  Xlll 

CHAPTER  XVI. 

WHO  ARE  PASSENGERS. 

§  210.  'Tassenjier"  Detiued. 

I'll.  Postal  Agents. 

212.  Express  Messengers. 

213.  Porter  on  Sleeping  Car. 

214.  Drover  Accompanying  Stock.  ' 
21.">.  Person  Engaged  in  Business  on  CaiTier's  Vehicle. 
21G.  Person  Assisting  Gamer's  Servant. 

217.  Gamer's  Employes. 

218.  Soldiers. 

219.  Slaves. 

220.  Persons  Engaged  in  Illegal  Acts— Sunday  Travel. 

221.  Prepayment  of  Fare. 

222.  Same — Fi'aud  on  Garrier. 

223.  Same— Fraudulent  Use  of  Pass  or  Ticket. 

224.  Person  Riding  in  Dangerous  or  Prohibited  Places. 

225.  Persons  on  Freight  Trains. 

226.  Persons  on  Other  Non  Passenger  Carrying  Vehicles. 

227.  I'ersons  on  Wrong  Train. 

228.  When  Relation  Begins— Persons  at  Station. 

229.  Same — Omnibus  and  Street  Car. 

230.  Same — Persons  Boarding  Moving  Trains  or  Street  Cars. 

231.  When  Relation  Terminates. 

232.  Same — Failure  to  Leave  Train. 

233.  Samc^Street  Cars. 

234.  Same— Passenger  Leaving  Conveyance  at  Intermediate   Sta- 

tion. 

CHAPTER  XVII. 

DUTY  TO  GRATUITOUS  PASSENGERS  AND  PERSONS  NOT 

PASSENGERS. 

§  23.5.  Duty  to  Gratuitous  Passengers. 

230.  Duty  to  Invited  Persons,  Licensees,  and  Trespassers. 

237.  Same — Escorts  of  Passengers. 

238.  Same — Persons  Having  Business  at  Saticus. 


Xiv  TABLE    OF    CONTENTS. 

§  239.    Saino-Lici'ii.stes  at  Stations. 

240.  Same— Trespa.ssers  on  Trains. 

241.  Same— Trespa.s.siug  Cliildren. 

CH ALTER  XVIII. 

DUTY  TO  ACCEPT  AND  CARKl'  PASSENGERS, 

§  242.  Carrier  must  Accept  All  Proper  l*ersons. 

24o.  Who  may  be  Rejected. 

244.  Same — Business  Rivals. 

245.  Same— Exclusive  Station  Privileges. 

246.  Same— Waiver  of  Right  to  Reject. 

CHAPTER  XIX. 

CARRIER'S  RULES  AND  REGULATIONS. 

§  247.    Power  of  Carrier  to  Make. 
248.    Province  of  Covut  and  .Tury. 

CHAPTER  XX. 

DUTY  AS  TO  ACCOMMODATIONS. 

§  240.  ^lust  Furnish  Reasonable  Accommodatious. 

250.  At  Stations. 

251.  During  Transportation— Seats. 

252.  Same— Heating  Cars, 

253.  Sleeping  Cars. 

254.  Chair  Cars. 

255.  Separation  of  Passengers  on  Account  of  Sex. 

256.  Separation  of  Passeng(>rs  on  Account  of  Color, 

257.  Same— Statutes  Requiring  Separation. 

25S.    Same— Statutes  Requiring  Equal  Accommodations. 


TABLE    OF    CONTENTS.  XV 

CHAPTER  XXI. 

FAKES. 

§  2.r»9.  Right  to— Rensonablouess. 

260.  State  Kegulatiou. 

201.  Same— Of  Street-Railway  Fares  by  City. 

262.  Same — Interstate  Commerce  Act. 

263.  Same— Penalty  for  Excessi^ive  Fare. 

264.  Same — Free  Passes  to  Public  Oflicers. 
20').  Same— Sale  of  Tickets  by  Scalpers. 

266.  Mode  of  Payment. 

267.  Time  of  Payment. 

268.  Higher  Train  Fare. 

269.  Same— Reasonable  Opportunity  to  Purchase  Ticket. 

270.  Same — Excessive  or  Unreasonable  Train  Fare. 

271.  On  Freight  Trains. 

272.  Free  Pass— Contract  for. 

273.  Remedies  of  Carrier  for  Nonpayment. 

274.  Recovery  Back  by  Passenger. 

CHAPTER  XXII. 

TICKETS. 
§  275.    Natxire  and  Effect. 

276.  Conditions  and  Stipulations  in  Ticket— Constrnotion. 

277.  Collection  and  Surrender  of  Tickets. 

278.  Same— Detaching    Coupons    from    Mileage    or    Commutation 

Tickets. 

270.  Loss  of  Ticket. 

280.  Riding  Extra  Distance  or  Part  of  Distance. 

281.  Riding  in  Reverse  Direction  trom  That  Indicated  on  Ticket. 

282.  Assignability  of  Ticket. 

283.  Forli'ilure  of  Ticket. 

284.  Provision  for  Identification  of  Purchaser. 
28.">.  Limilatiouas  lo  Time. 

28(!.    Same— Limitation  by  Regulation  not  Expressed  in  Ticket. 

287.  Same— Limitation  must  be  Reasonable. 

288.  .Same — Construction  of  Limitation. 


XVi  TABLK    OF    CONTENTS. 

§  289.  Same— Waiver  of  Limitiition. 

290.  Same— Maine  Statute. 

291.  Continuity  of  Journey, 
-M-.  Same— Coupon  Tickets. 
29o.  Same— Stop-Over  Privileges. 
294.  Same— California  Statute. 

293.  Street-Car  Transfers  and  Tickets. 


CHAPTER  XXIII. 

DUTY  TO  CARRY  PUNCTUALLY  AND  TO  DESTINATION. 

2!)0.  Punctuality  in  Ruuning  Time. 

297.  Same— Ferrymen. 

298.  Duty  to  Carry  from  Place  of  Departure  to  that  of  Destination. 
29l>.  Failure  to  Take  on  Passenger. 

390.  Failure  to  Carry  to  Destination. 

."01.  Same — Announcing  Station. 

302.  Regulations  as  to  Stopping  Places  for  Trains. 

303.  Same— Pass(-nger's  Duty  to  Know  Regulations. 

304.  Same — Rights  and  Duties  of  Passenger  on  V/roug  Train. 

305.  Same— Representations  of  Ticket  Agent. 

306.  Same— Waiver  by  Conductor. 

307.  Same— Waiver  by  Custom. 

308.  Regulations  Restricting  Tickets  to  Particular  Trains. 

309.  Restriction  as  to  Train  in  Ticket. 

310.  Restriction  as  to  Route. 

CHAPTER  XXIV. 

EJECTION. 

311.  Right  to  Eject  Passenger. 

312.  Refusal  to  Pay  Fare,  or  to  Exhibit  or  Surrender  Ticket. 

313.  Same— Person  Accompanying  Passenger. 

314.  Same— Tender  of  Fare  after  Ejection  Begun. 

315.  Same— Right  to  Resume  Journey  after  Ejection. 
310.  Same— Loss  of  Ticlcet  or  Fare. 

317.  Same— :\Iistake  as  to  Ticket  or  Fare. 

318.  Same— Demand  of  Exce.><sive  Fare. 


TABLE    OF    CONTENTS.  X^'H 

319.  Same— Mistake  of  G  a  toman. 

320*  Same— Mistake  in  Taking  up  Tickets. 

321.  Same— Mistake  as  to  Time  Limit. 

322.  Same— Mistake  as  to  Trains. 

323.  Same— Mistake  as  to  Round-Trip  and  Coupon  Tickets. 

324.  Same— Mistake  as  to  Street-Car  Fares. 

32.J.  Same— Cases  Holdinir  Ticket  Conclusive  as  between  Conductor 

and  Passenger. 

32G.  Same— Eight  to  Resist  Wrongful  Expulsion. 

327.  Disobedience  of  Rules. 

328.  Disorderly  Conduct. 

329.  Same— Intoxicated  Persons. 

330.  Same— Overt  Acts. 

331.  Same— Statute  Authorizing  Ejection  or  Arrest. 

332.  Place  of  Ejection, 

333.  Same— Statutory  Requirements. 

334.  Mode  of  Ejection. 

33.>.  Same— Resistance  of  Passenger. 

33(>.  Same— Orders  and  Threats. 

337.  Same— Province  of  Court  and  Jury. 

338.  Refunding  Fare. 

339.  Duty  of  Ejected  Passenger. 

V.  1  FET.CAR.PAS. 6 


Xviii  TABLE    OF    CONTENTS. 


VOLUME  2. 


CHAPTER  XXV. 

LIABILITY  FOR  SERVA^^T'S  ACTS. 

340.  Master's  Liability  for  Servant's  Torts. 

34L  History  anrl  Reason  of  the  Rule. 

342.  No  Distinction  between  Corporations  and  Individuals. 

343.  Who  are  Servants. 

344.  Same— Independent  Contractors. 
34.J.  Same— Physicians  and  Surgeons. 
34(;.  Same— Pilots. 

347.  Same— Double  Employment. 

348.  Same— Police  Duties. 

34!).    Same— Person  Assisting  Servant. 

3r)0.    Same— Evidence  of  Employment. 

3.')!.    Torts  Commanded  or  Ratified  by  Master. 

3~>2.    Negligence  of  Servant. 

S,"),'!.    Excessive  or  Erroneous  Execution  of  Authority. 

354.    Same— Exploded   Rule  Exempting  Master  from   Liability   for 

AMllful  Torts  of  Servant. 
3.">.").    Same— Misconduct  at  Stations. 
3.")<;.    Same — Directing  or  Assisting  Passenger  in  Boarding  or  Aligiit- 

ing. 
357.    Same— Inviting  I'ersons  to  Ride  in  Dangerous  and  Prohibited 

Places. 
3.5S.    Same — Ejection  of  Passengers. 
3."it).    Same — Ejection  of  Trespassers. 
StiO.    Same — False  Imprisonment  and  Arrest. 
3(51.    Same — Enforcing  Payment  of  Fare. 
3L>2.    San)e — Directing  Performance  of  Perilous  Si"i  vice. 


TABLE    OF   COXTENTS.  XIX 


363.  Same — Warning  Passengers  of  Danger. 

364.  Same— Violation  of  Master's  Orders. 

365.  Absolute  Liability  of  Common  Carriers. 

366.  Same— Applications  of  Kule. 

367.  Same— Justitiable  Assaults. 

368.  Same — ^yhen  Terminates. 

369.  Indeiiendent  Torts  of  Servants. 

370.  Contracts  of  Agents. 


CHAPTER    XXVI. 


CONNECTING  CAKRIEKS.   AND  LEASE  AND  OWNERSHIP  OP 
RAILROADS  AS  AFFECTING  CARRIERS  LIABILITY. 

§  "371.    Connecting  Carriers— Liability  of  Carrier  for  Its  Own  Torts. 

372.  Same— Liability  of  First  Carrier  for  Torts  of  Connecting  Car- 

rier. 

373.  Same— Partnership  or  Joint  Management. 
37-1.    Same— Refusal  to  Honor  Ticket. 

375.  Same— Rights  and  Liabilities  as  between  Themselves. 

376.  Use  of  Another's  Means  of  Transportation— Liability  of  Carry- 

ing Company. 

377.  Same — Liability  of  Track-Owning  Company. 

378.  Same— Railroad  and  Sleeping-Car  Companies. 
37'J.    Lease  of  Railroads— Liability  of  Lessee. 

380.  Same — Liability  of  Lessor. 

381.  Sale  of  Railroad. 

38'-'.    Consolidation  of  Railroads. 
383.    Ultra  Vires  Defense. 


CHAPTER  XXVU. 

RECEIVERS  AND  MORTGAGE  TRUSTEES  AS  CARRIERS. 

§  384.  Receivers  as  Common  Carriers. 

385.  Same— Actions  against. 

386.  Same— Liability  of  Railroad  Company. 

387.  Same— Effect  of  Discharge. 

388.  Mortgage  Trustees. 


XX  TABLE    OF    CONTENTS. 

CHAPTER  XXVIII. 

LT^FTTATIOX  AND   DISCHAKGE   OF  LIABILITY. 

§  3S9.  Power  to  Stipulate  against  Negligence. 

390.  Same— Statutory  Proliibitions. 

391.  Same— Rule  iu  New  Yorlv  aud  in  Euglaud. 

392.  Same— Gross  Negligence  Rule. 
^^■6.  Same— Gratuitous  Passengers. 

394.  Same— Who  are  Gratuitous  Passengers. 

395.  Same— Express  Messengers. 

396.  Same— Connecting  Lines. 

397.  Same— Limitation  as  to  Amount  of  Recovery. 
398. .  Conflict  of  Laws. 

399.  Mode  in  Wbicli  Limitation  may  be  Made. 

400.  Same— Contract  with  Third  Person. 
4U1.    Construction  of  Contract. 

402.  Release  and  Discharge  after  Injury. 

403.  Same— Rescission. 

404.  Same— Ratification  and  Laches. 


CHAPTER  XXIX. 

CARRIERS  BY  WATER. 

§  405.  No  Distinction  in  Principle  between  Carriers  by  Water  and 
by  Land. 

40G.  Duty  to  Carry  to  Destination  without  Delay. 

407.  Accommodations, 

408.  Authority  and  Power  of  Master. 

409.  Duty  to  Passengers  in  Shipwreck. 

410.  Admiralty  .lurisdiction. 

411.  Same — Liability  of  Vessel. 

412.  Liability  of  Master. 

413.  Statutory  Regulations— Emigi  ant  or  Steerage  Passengers. 

414.  Same— Steam  Vessels. 

415.  Same— Carrying  Excessive  Number  of  Passengers. 
41G.  Same— Carrying  Explosives. 

417.    Statutory  Limitation  of  Vessel  Owners'  Liability.  , 


TABLE    OF    CONTENTS.  XXI 

§  41S.    Same— To  What  Claims  Statute  Extends. 

419.  Same— To  What  Waters  and  Vessels  Applicable. 

420.  Same — ^Ascertaining  Value  of  Vessel. 


CHAPTER  XXX. 

REMEDIES  AND  FORMS  OF  ACTION. 

§  421.  Action  for  Damages  and  Writ  of  Mandamus. 

422.  Form  of  Action. 

42.3.  Same— Personal  Injuries  Negligently  Inflicted. 

424.  Same— Failure  to  Receive  Passenger,  or  to  Carry  to  Destina- 

tion. 

425.  Same— Ejection  of  and  Assaults  on  Passengers. 

CHAPTER  XXXI. 

PARTIES. 

§  426.    Distinction  between  Actions  on  Contract  and  in  Tort. 

427.  Plaintiffs. 

428.  Defendants. 

CHAPTER  XXXII. 

PLEADING. 

§  429.    Statement  of  Plaintiff's  Cause  of  Action— In  Action  Based  on 
Negligence. 

430.  Same— Alleging  Duty  of  Care— Relation  of  Carrier  and  Passen- 

ger. 

431.  Same— Alleging  Negligence. 

432.  Same — Alleging  Contributory  Negligence. 

433.  Same — Actions  for  Ejection  or  Failure  to  Carry  to  Destina- 

tion. 

434.  Same— Alleging  Damages. 

435.  Same— .Joinder  of  Causes  of  Action. 
4.3(5.    Defensive  Pleadings, 

437.  Amendments. 

438.  Pleading  and  Proof— Variance. 


xxii  TABLE    OF    CONTENTS. 

§  439.    Same— Allesalions  as  to  Place. 

440.  Same— Allegations  of  Negligence. 

441.  Same— Allegations  of  Gross  Negligence  and  Willfulness. 

4i-2.    Same— Allegations  by  Plaintiff  Negativing  Contributory  Neg- 
ligence. 

443.  Same— lu  Actions  for  Ejection  and  Failure  to  Carry  to  Destimi- 

tiou. 

444.  Same— Allegations  as  to  Damages  and  Injuries. 

445.  Same— Defendant's  Pleadings. 

446.  Same— Waiver  of  Objections. 


CHAPTER  XXXIII. 

EVIDENCE-COMPETENCY,  RELEVANCY,  AND  MATE- 
RIALITY. 

§  447.  Knowledge  of  Defects  or  Incompetency. 

448.  Custom  and  Usage. 

440.  Other  Acts  of  Negligence. 

450.  Other  Accidents. 

451.  Other  Defects. 

452.  Subsequent  Precautions  and  Repairs. 

453.  Declarations  against  Interest. 

454.  Same— By  Agents  or  Employes. 

455.  Declarations  in  Favor  of  Party  Making  Them. 

456.  Same— Declarations  and  Exclamations  of  Pain. 

457.  Declarations  and  Acts  of  Third  Persons. 

458.  Real  or  Demonstrative  Evidence. 

459.  Photographs. 

460.  Physical  Examination  of  Plaintiff. 

46L  Best  Evidence— Evidence  on  Former  Trial. 

462.  Miscellaneous  Decisions— Negligence  and  Contributory  Negli- 

gence. 

463.  Same — In  Actions  for  Ejection  and  Wrongful  Arrest, 

464.  Same— As  to  Damages  and  Injuries. 

465.  Opinion  Evidence. 

466.  Same — As  to  Injuries  and  Damages. 

467.  Expert  Evidence. 

468.  Same— On  What  Subjects  Competent. 

469.  Same— Medical  Experts. 


TABLE    OF    CONTENTS.  XXIU 

§  470.    Same— Medical   Opinions   Based   on   Statements   Made   out   of 
Court. 

471.  Same— Examination  of  Experts. 

472.  Privileged  Communications. 


CHAPTER  XXXIV. 
EVIDENCE  (Continued)-WEIGHT  AND  SUFFICIENCY. 

47o.  Burden  of  Proof. 

474.  Same— As  to  Breach  of  Duty. 

475.  Same— As  to  Damages  and  Injuries. 
47G.  Same— Contributory  Negligence. 

477.  Degree  of  Proof. 

478.  Judicial  Notice. 

479.  Presumption  of  Being  Passenger. 

4S().  Presumption  of  Negligence- Happening  of  Accident. 

481.  Same— Accidents  on  Road  Vehicles. 

482.  Same— Derailment  of  Car  or  Train. 

483.  Same— Collision. 

484.  Same— Explosions. 

48.5.  Same— Defective  Roadbed  and  Machinery. 

486.  Same— Concussion  of  Cars,  and  Jars  of  Trains  and  Boats. 

487.  Same— Injuries  to  Passengers  While  Embarking  and  Alight- 

ing. 

4SS.  Same— Falling  Objects  and  Missiles. 

48t>.  Same— Death  of  Passenger. 

49(».  Same— Other  Cases  Where  Presumption  has  Obtained. 

491.  Same— Other  Cases  Where  Presumption  has  not  Obtained. 

492.  Same— Contributory  Negligence. 
49:>.  Same— Persons  not  Passengers. 
494.  Same— Rebutting  tlie  I'n  sumption. 
49.5.  Same— Rule  in  Texas. 

490.  Same— Statutory  Presumptions. 

497.  Credibility  of  Witnesses. 

498.  Same— Contradictory  Statements. 

499.  Same— Falsus  in  Uno,  Falsus  in  Omnilms. 
".0(1.  Positive  and  Negative  Te.stimouy. 

.'(il.  Failure  to  Call  \Aitness. 

502.  Weighing  Kxi  rrt   Evidence. 


Xxvi  TABLE    OF    CONTENTS. 

§  5G3.  Same— Female  Troubles. 

564.  Same— Loss  of  Society,  Services,  etc. 

5G5.  Assault,  Insult,  and  Arrest. 

500.  Failure  or  Refusal  to  Accept  and  Carry  Passenger. 

507.  Denial  of  Accommodations. 

5GS.  Carrying  Past  Destination. 

569.  Ejection. 

570.  Same— Personal  Injuries. 

571.  Same— Good  Faith  of  Conductor. 

572.  Same— At  Place  Other  Than  a  Station. 

578.  Compelling  Payment  of  Two  Fares. 

574.  Practice— Remittitur. 

575.  Inadequate  Damages. 

CHAPTER  XXXIX. 

DEATH  BY  WRONGFUL  ACT. 

§  576.    Common-Law  Rule. 
577.    Modern  Statutes. 

57S.    Same— Massachusetts  Statutory  Provisions  Pertaining  to  Pa> 
sengers. 

579.  Same— Statutes  of  Missouri,  Colorado,  and  New  Mexico, 

CHAPTER  XL. 

BAGGAGE. 

§  580.  Carrier's  Liability. 

581.  Same— Consideration  for  Carriage 

582.  Same— Act  of  God. 

583.  Same— Act  of  Public  Enemy. 

584.  Same— Seizure  on  Legal  Process. 

585.  Same— Instances  Where  Liability  has  been  Enforced. 

580.  Duty  to  Carry. 

587.  What  Constitutes  Baggage. 

588.  Same— Province  of  Court  and  Jury. 

589.  Same— Wearing  Apparel. 

590.  Same— Household  Goods. 

591.  Same— Tools  and  Surgical  Instruments. 

592.  Same— Manuscripts. 


TABLE    OF    CONTENTS.  XXVll 

t  503.  Same— Theatrical  Paraplierualia, 

594.  Same— Jewelry, 

595.  Same — Bicycles. 
590.  Same— Firearms. 
597.  Same — Dogs. 
59S.  Same — Money. 

599.  Same— Duty  to  Disclose  Value. 

600.  Same— Property  of  Tiiird  Persons. 

601.  Same— Passenger  to  Accompany. 

602.  Merchandise. 

603.  Same— Custom  and  Usage. 

604.  Same— Carrier's  Duty  to  Inquire. 

605.  Same— Payment  of  Extra  Compensation. 

606.  Same— Knowledge  of  CaxTier. 

607.  Rights  of  Passenger  as  to  Property  not  Baggage. 
60S.  Duration  of  Liability  as  Insurer. 

609.  When  Liability  Begins. 

610.  Same— Notice  to  Carrier. 

611.  Same— Purchase  of  Ticket. 

612.  Same— Agent's  Authority  to  Receive  Baggage. 
013.  Termination  of  Liability. 

614.  Same— What  is  Reasonable  Time  for  Delivery. 

615.  Same— Delay  for  Convenience  of  Carrier. 
610.  Same— Delay  for  Convenience  of  Passenger. 
617.  Same— Delivery  According  to  Custom. 
61S.  Same— Mistake. 

619.  Same— Passenger  Stopping  at  Intermediate  Station. 

620.  Same— Death  of  Passenger  During  Voyage. 

621.  LiabiHty  as  Warehouseman. 

622.  Same— Termination  of  Liability. 

623.  Connecting  Carriers— Liability  of  Each  as  to  Its  Own  Line. 

624.  Same— Liability  of  First  Carrier  Beyond  Its  Line. 

625.  Same— Liability  of  Connecting  Carrier  Beyond  Its  Line. 

626.  Same— Partnership  and  Joint  Traffic  Arrangements. 
027.  Limitation  of  Liability  by  Contract. 

628.  Same — Connecting  Lines. 

629.  Same— Mode  in  Which  Liability  may  be  Limited. 

630.  Limitation  as  to  Value  of  Baggage. 

631.  Same— Mode  in  Which  Liability  may  be  Limited. 
032.  Statutory  Limitation  of  Liability. 


XXVlll  TABLE    OF    CONTENTS. 

§  633.    Conflict  of  Laws  as  to  Limitation  of  Liability. 

634.  Carrier's  Lien  for  Fare. 

635.  General  Average  Contribution. 

CHAPTER  XLI. 

PROPERTi  IN  PASSENGEK  S  CUSTODY. 

§  636.  Carrier's  Liability. 

637.  Same— Railroad  Companies. 

638.  Same — Steamboats  and  Vessels. 

639.  Same— Sleeping  Cars. 

640.  Same — Liability   of  Railroad   Company  for   Loss  of  Articles 

from  Sleeping  Car. 

641.  Same — Articles  Left  in  Car. 

642.  For  What  Property  Liable. 

643.  Contributory  Negligence  of  Passenger. 

CHAPTER  XLII. 

ACTIONS   PERTAINING  TO   BAGGAGE. 

§  644.  Parties. 

645.  Form  of  Action. 

646.  Pleading. 

647.  Admissibility  of  Evidence. 

648.  Same— Declarations  of  Agent  or  Employe. 
64y.  Same— Opinion  Evidence. 

650.  Burden  of  Proof,  and  Presumptions. 

651.  Same— Possession  of  Baggage  Checks. 

652.  Measure  of  Damages— Loss  of  Baggage. 

653.  Same— Delay  in  Delivery. 

TABLE  OF  CASES  CITED. 

(Page  1555.) 

INDEX. 

(Page  1615.) 

t 


A    TREATISE 


ON    THE    LAW    OF 


CARRIERS  OF  PASSENGERS. 


VOL.  1. 


CHAPTER  I. 

GENERAL  PRINCIPLES    GOVERNING   CARRIER'S    LIABILTY. 

§     1.  Liability  Depends  on  Negligence  or  Willful  Wrong. 

2.  Same— History  of  Rule. 

3.  Negligence  Defined. 

4.  Essential  Elements  of  Negligence. 

5.  Same— Duty  to  Exercise  Care. 

6.  Same— Inadvertent  Breach  of  Duty. 

7.  Same— Proximate  Cause  of  Injury. 

8.  Degree  of  Care  Required  of  Passenger  Carriers. 
0.  Same— Reason  of  the  Rule. 

10.  Standard  of  Care. 

11.  Highest  Practicable  Care. 

12.  Unforeseen  Accidents. 

13.  Duty  to  Adopt  New  I  )evices— Financial  Ability. 

14.  Custom  and  Practice  of  Other  Carriers. 

15.  Act  of  (iod  and  of  Pulilic  Enemy. 

16.  Same  Degree  of  Care  Required  Whatever  Mode  of  Conveyance 

Adopted. 

17.  Same— P^'reight  and  Construction  Trains. 

18.  Same— Strcet  Cars. 

V.  1  FET.CAR.PAS 1  (1) 


§    2  CARRIERS    OF    PASSENGERS.  (Ch.   1 

I'J.  Same— Stage  Coaches. 

20.  Same— Vessels. 

21.  Same— Passenger  Elevators. 

22.  No  Distinction  botweou  Different  Classes  of  Passengers. 

23.  Duty  Extends  to  Vehicles  Other  than  the  One  in  Which  the  Pas- 

senger is  Carried. 

24.  Statutory  Liability. 

25.  Same— California  Code. 
2G.  Same— Georgia  Code. 

27.  Same— Nebraska  Statute. 

28.  Province  of  Court  and  Jury. 


§  1.     LIABILITY  DEPENDS  ON  NEGLIGENCE  OR  WILL- 
FUL WRONG. 

A  common  carrier  is  not  an  insurer  of  passengers; 
and  a  passenger  who  has  been  injured  on  his 
journey  is  bound  to  show  that  the  injury  re- 
sulted either  from  the  w^illful  wrong  or  from 
the  negligence  of  the  carrier  or  his  servants.^ 

§  2.     SAME— HISTORY  OF  RULE. 

lu  the  ancient  common  law  the  leading  idea  seems  to 
have  been  that  a  man  ought  to  pay  for  all  the  liarm  he 
docs  his  neighbors,  without  regard  to  any  question  of 
blameworthiness.^  "He  that  is  damaged  ought  to  be 
recompensed,"  was  the  maxim. ^     This  principle  seems 

SI.    1  Nicholls  V.  Railroad  Co.,  Ir.  R.  7  C.  L.  40. 

§  12.     12  Pol.  &  M.  Hist.  Eng.  Law,  474. 

2  Brown  v.  Collins,  53  N.  H.  442.  In  this  case  the  court  says:  "The 
drift  of  the  ancient  English  autlioiities  on  the  law  of  torts  seems  to  dif- 
fer materially  from  the  view  now  prevailing  in  this  country.  P""or- 
merly,  in  England,  there  .seems  to  have  been  no  well-defined  tost  of  an 
actual  tort.     Defendants  were  often   held  liable,   'because,'   as   Ray- 

C2) 


Ch.   1)         GENERAL    PRINCIPLES   GOVERNING    LIABILITY.  §   2 

to  have  applied  with  its  full  force  to  bailees  of  prop- 
erty. Mr.  Justice  Holmes  '  has  shown  that  from  the 
earliest  cases  in  the  Year  Books  down  to  the  great  case 

mond  says,  'he  that  is  damaged  ouj;bt  to  be  recompensed';  and  not 
because,  upon  some  dearly-stated  principle  of  law,  founded  upon  ac- 
tual culpability,  public  policy,  or  actual  justice,  he  was  entitled  to 
compensation  from  defendant."  Even  in  very  recent  times  cases 
have  been  decided  on  the  principle  that  a  man  is  liable  for  injuries  to 
his  neighbor  without  fault  on  his  pait.  The  leading  modern  case  is 
Fletcher  v.  Rylands.  L.  R.  1  Exch.  265,  affirmed  in  L.  R.  3  H.  L.  SoO. 
In  this  case  it  was  held  that  one  who  on  his  own  land  constructs  n 
reservoir,  and  collects  water  therein,  must  keep  it  in  at  his  peril;  anil 
if  it  escapes,  and  injures  his  neighbor's  property,  he  must  answer  In 
damages,  though  he  exercised  proper  care  in  the  construction  and 
maintenance  of  the  reservoir.  "He  can  excuse  himself  by  showing 
that  the  escape  was  owing  to  the  plaintiff's  default,  or,  perhaps,  that 
the  escape  was  the  consequence  of  the  vis  major  or  the  act  of  God:" 
but  otherwise  he  is  liable.  This  case  has  been  followed  in  some  or  tne 
American  courts,  but  for  the  most  part  the  principle  of  the  decision  has 
been  rejected  as  unsound.  "No  one  is  responsible  for  injuries  result- 
ing from  unavoidable  accident  while  engaged  in  a  lawful  business," 
says  the  supreme  court  of  the  United  States  in  Parrott  v.  Wells,  Fargo 
&  Co.,  1.5  Wall.  524.  Some  years  earlier.  Chief  Justice  Shaw  said: 
"We  thinli,  as  the  result  of  all  the  authorities,  that  the  rule  is  that  the 
plaintiff  must  come  prepared  with  evidence  to  show  that  the  intention 
was  unlawful,  or  that  defendant  was  in  fault;  for,  if  the  injury  was 
unavoidable,  and  the  conduct  of  the  defendant  free  from  blame,  lie  will 
not  be  held  liable.  If,  in  the  prosecution  of  a  lawful  act,  a  casualty 
purely  accidental  arises,  no  action  can  be  supported  for  an  injury  aris- 
ing therefrom."  Brown  v.  Kendall,  0  Cush.  (Mass.)  292.  The  court 
of  appeals  of  New  York  has  announced  the  same  doctrine:  "One  who 
does  an  act  lawful  in  itself,  from  which  damage  results  to  another, 
is  not  answerable  for  such  damage,  unless  lie  has  been  guilty  oi  negn- 
gi'uce  or  other  fault  in  the  manner  of  doing  the  act."  Losee  v.  Buch- 
anan, 51  N.  Y.  470.  In  view  of  the  fact  that  the  liability  of  conunon 
carriers  of  passengers  is  now  concededly  based  on  negligence,  it  is  un- 
necessary to  pursue  the  sul>ject  furtlier. 
3  Holmes,  Com.  Law,  c.  5,  "I'.ailnients." 


§    2  CARRIERS   OF  PASSENGERS.  (Ch.    1 

of  Soutlicot  Y.  Bennet,*  decided  in  Lord  Coke's  time,  re- 
affirmiug  the  old  doctrine,  "it  was  clear  law  that,  if  a 
person  accepted  the  possession  of  goods  to  keep  for 
another,  even  as  a  favor,  and  lost  them  by  wrongful 
taking,  wholly  without  his  fault,  he  was  bound  to 
make  good  the  loss,  unless  when  he  took  possession  he 
stipulated  against  such  liability."  '  This  continued 
to  be  the  law  until  1703,  when  the  old  common  law 
was  overthrown  by  Lord  Holt  in  the  famous  case  of 
Coggs  V.  Bernard.^  In  that  case  the  chief  justice  dis- 
tinuuished  between  bailees  for  reward  exercising  a 
public  employment  and  other  bailees,  denied  the  ap- 
plication of  the  old  common  law  to  the  latter  class,  but 
on  grounds  of  public  policy  held  it  applicable  with 
something  more  than  its  pristine  rigor  to  the  former 
class.^  "The  law  charges  the  person,  thus  intrusted,  to 
carry  goods  as  against  all  events  but  the  act  of  God 
and  the  enemies  of  the  kin«*,"  is  Lord  Holt's  dictum  in 
this  case.  This  dictum  was  formally  adopted  as  the 
common  law  bv  solemn  decision  in  Lord  Mansfield's 
time;  ^  and  now  the  fundamental  principle  of  the  com- 
mon law  on  this  subject  is  that  a  common  carrier  of 
goods  is  answerable  for  their  safety  as  insurer,  except 
as  against  the  acts  of  God  and  the  public  enemies, 
without  regard  to  any  question  of  negligence.^ 

For  a  time  at  least  it  seemed  doubtful  whether  or 

4  Cro.  EUz.  815;    4  Coke,  83b. 

6  Holmes,  Com.  Law,  p.  179.     See,  also,  2  Bl.  Comm.  452. 

6  2  Ld.  Raym.  909;    1  Smith,  Lead.  Cas.  369. 

"  Holmes.  Com.  Law,  c.  5. 

8  Forward  v.  Pittard,  1  Term  R,  27. 

0  2  Kent,  Comm.  597. 

(4) 


Ch.    1)  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    2 

not  the  same  principle  would  be  applied  by  the  courts 
to  common  carriers  of  persons.  The  earliest  reported 
case  where  a  common  carrier  was  sued  for  personal  in- 
juries to  a  passen«>('r  is  that  of  White  v.  Boulton/"  de- 
cided in  1791.  In  that  case  it  was  contended  ou  be- 
half of  defendant,  who  was  proprietor  of  a  mail  coach, 
that  the  passenger  traveled  at  his  own  risk,  because 
the  coach  proprietor  was  primarily  engaged  in  a 
branch  of  the  public  service,  to  wit,  carrying  the  mails. 
But  Lord  Kenvon  curtlv  said  that  the  idea  Avas  "too 
absurd  to  enter  the  head  of  any  man."  "When  these 
coaches  carry  passengers,  the  proprietors  of  them  are 
bound  to  carry  them  safely  and  properly." 

A  number  of  other  early  decisions  proceeded  on  the 
assumption  that  common  carriers  of  passengers  are  in- 
surers of  their  safe  transportation,  at  least  so  far  as 
roadworthiness  of  vehicles  is  concerned. ^^  And  in 
Alden  v.  New  York  Cent.  R.  Co.^-  it  was  expressly  held 
that  a  common  carrier  of  passengers  is  bound,  abso- 
lutely and  irrespective  of  negligence,  to  provide  road- 
worthy  vehicles.  The  great  weight  of  authority,  how- 
ever, has  always  been  that  the  liability  of  carriers  of 
passengers  depends  on  negligence.  In  1809,  Chief 
Justice  Maustield  charged  the  jury:  ^^  "There  is  a 
difference  between  a  contract  to  carry  goods  and  a  con- 
tract to  carry  passengers.  For  the  goods  the  carrier 
is  answerable  at  all  events.      But  he  does  not  warrant 

10  reake,  113. 

11  Sharp  V.  Grey,  9  Bing.  457;    Bremuer  v.  Williams,  1  Car.  &  P.  414, 
41*;:    Israel  v.  Clark,  4  Esp.  259, 

i-2t;X.  Y.  102. 

13  Christie  v.  Griggs,  2  Camp.  79. 

(3) 


§    2  CARRIERS  OF  PASSENGERS.  (Ch.    1 


14 


the  safety  of  passengers."  In  Aston  v.  Heaven, 
Chief  Justice  Eyre  rnled  tliat  an  action  against  a  car- 
rier for  injuries  to  a  passenger  is  founded  on  negli- 
gence: and  the  carrier  is  not,  like  a  carrier  of  goods, 
liable  in  all  cases  except  where  the  accident  happens 
from  the  act  of  God  or  of  the  king's  enemies.  But  it 
^Yas  not  until  1869  that  the  question  was  finally  settled 
in  England.  In  the  case  of  Readhead  v.  Railway  Co.'' 
the  court  said:  "We  are  of  opinion,  after  considera- 
tion of  the  authorities,  that  there  is  no  contract  either 
of  greneral  or  limited  warranty  and  insurance  entered 
into  by  the  carrier  of  passengers,  and  that  the  contract 
of  such  a  carrier  and  the  obligation  undertaken  by 
him  are  to  take  due  care  (including  in  that  term  the 
use  of  skill  and  foresight)  to  carry  a  passenger  safely. 
It  of  course  follows  that  the  absence  of  such  care — in 
other  words,  negligence — would  alone  be  a  breach  of 
this  contract."  ^" 

14  2  Esp.  532.  See,  also,  Crofts  v.  Waterhouse,  3  Bing.  319;  Harris 
V.  Costar,  1  Car.  &  P.  636. 

15L.  R.  4Q.  B.  379. 

16  In  Bridges  v.  Directors,  etc.,  of  North  London  Railway  Co..  L.  R. 
7  H.  L.  231,  Brett,  J.,  said:  "It  is  an  implied  part  of  tlie  contract  of 
carriage  that  defendants  and  their  servants  will  use  reasonable  care 
and  skill  in  the  conveyance  of  passenger  to  his  agreed  destination. 
And  if  defendants  or  their  servants  have  been  negligent  or  wanting  in 
i-easonable  skiU  in  the  conveyance,  and  the  passenger  has  been  injured, 
there  has  been  a  breach  of  contract,  for  which  defendants  are  liable, 
and  for  which  the  passenger  is  entitled  to  compensation  by  way  of 
damages."  In  Butler  v.  Manchester,  S.  &  L.  Ry.  Co!,  21  Q.  B.  Div.  207, 
it  is  said:  "The  contract  between  the  passenger  and  the  carrier  really 
is  that,  on  his  paying  the  fare  for  the  jomney,  it  will  carry  him  in  its 
carriage  on  the  journey  for  which  he  has  paid  the  fare,  using  due  care 
for  his  safety  while  so  doing." 

(6) 


Ch.    1}  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    2 

In  the  United  States  the  conrts  have  been  equally 
emphatic  in  deelarinii-  that  carriers  are  not  insurers  of 
the  safety  of  their  passengers.  As  long  ago  as  1845 
the  supreme  court  of  Massachusetts,  in  an  able  opin- 
ion/" declared  the  rule  to  be  that  carriers  are  bound 
to  exercise  due  care  for  the  safety  of  their  passengers; 
but  that,  if  an  injury  happens  to  a  passenger  which 
cannot  be  guarded  against  by  the  exercise  of  a  sound 
judgment  and  vigilant  oversight,  the  misfortune  must 
be  borne  by  the  sufferer  as  one  of  that  class  of  injuries 
for  which  the  law  can  afford  no  redress  in  the  form  of 
pecuniary  recompense.  "The  analogies  of  carriers  of 
freight  have  nothing  to  do  with  passenger  carriers. 
These  are  liable  only  when  there  has  been  actual  neg- 
ligence of  themselves  or  their  servants."  '^  "A  com- 
mon carrier  of  passengers  is  not  an  insurer  of  the  pas- 
senger's safety  against  all  the  accidents  and  vicissi- 
tudes of  travel,  but  is  an  insurer  against  all  risks  caus- 
ed or  increased  by  the  negligence  of  the  carrier,  where 
the  passenger  is  not  at  fault.  The  negligence  of  a 
common  carrier  in  carrying  the  passenger  includes  his 
negligence  in  all  the  departments  of  his  undertaking: 
the  condition  of  the  road,  the  character  of  the  ma- 
chinery, the  quality  of  the  cars,  the  sufficiency  of  the 
equipments,  the  skill  and  conduct  of  the  agents  and 
employees,— in  everything,  indeed,  necessary  to  the 
safety  of  the  passenger  when  he  is  not  himself  at 
fault."  " 

17  Ingalls  V.  Bills,  9  Mctc.  (Mass.)  1. 

IS  (Jrnnd  Rapids  &  I.  R.  Co.  v.  Huntley,  38  Mich.  537. 

i»  (iiaiid  Rapids  &  I.  R.  Co.  v,  Boyd,  65  Ind.  526. 

(7) 


§   2  CARRIERS  OF  PASSENGERS.  (Ch.   1 

This  rule  is  now  in  force  throughout  the  United 
States,  except  in  Nebraska,  where  it  has  been  modified 
by  statute."  It  has  been  adopted  as  law  by  the  su- 
preme court  of  Louisiana,  where  the  civil  law  pre- 
vails.-^ In  Williams  v.  Pullman  Palace-Car  Co."  that 
court  said:  "In  dealing  with  matter  of  litigation 
growing  out  of  the  construction  of  railway  law,  in  con- 
nection with  railway  accidents,  the  supreme  court  of 
Louisiana  will  endeavor  to  place  its  rulings  in  line  and 
in  harmony  with  the  adjudicatious  of  the  supreme 
court  of  the  United  States,  and  of  courts  of  last  resort 
of  the  American  Union,  in  all  cases  in  which  they  do 
not  conflict  with  the  special  and  exceptional  system  of 
laws  prevailing  in  Louisiana."  ^^ 

20  For  the  NebrasJia  statute,  see  post,  §  27.  An  exception  seems 
also  to  be  created  by  the  Code  of  California,  for  which  see  post,  §  2o. 

21  In  Black  v.  Carrolltou  R.  Co.,  10  La.  Ann.  33,  it  is  said:  "It  is  an 
implied  condition  of  the  contract  of  railroad  companies  with  each  pas- 
senger that  he  shall  not  be  put  in  jeopardy  of  life  or  limb  by  any  fault, 
even  the  slightest,  of  tlie  servants  of  the  company." 

22  40  La.  Ann.  417,  4  South.  85. 

2  3  The  American  cases  on  this  subject  are  so  numerous  that  a  bare 
citation  must  suffice:  '  George  v.  Railroad  Co.,  34  Ark.  613;  Fairchild 
V.  Stage  Co.,  13  Cal.  599;  Sanderson  v.  Frazier.  8  Colo.  80.  5  Pac.  632. 
and  cases  cited;  Hall  v.  Steamboat  Co.,  13  Conn.  319;  Flinn  v.  Rail- 
road Co.,  1  Houst.  (Del.)  409;  Chicago,  B.  &  Q.  R.  Co.  v.  George,  19 
111.  510;  Illinois  Cent.  R.  Co.  v.  O'Connell,  59  111.  App.  463,  and  cases 
cited.  "Carriers  of  passengers  are  not  answerable  for  injuries  to  pas- 
sengers at  all  events;  they  are  only  liable  for  want  of  cine  care.'' 
Stockton  V.  Frey,  4  Gill  (Md.)  406.  See,  also,  Baltimore  &  Y.  T.  R.  Co. 
V.  Leonhardt,  66  Md.  70,  5  Atl.  346;  Huelsenkamp  v.  Railway  Co.,  37 
Mo.  537,  and  cases  cited;  New  York,  L.  E.  &  W.  R.  Co.  v.  Ball,  53  N. 
J.  Law,  283,  21  Atl.  1052;  Palmer  v.  Canal  Co.,  120  N.  Y.  170,  24  N.  E. 
302,  affirming  46  Hun,  486;  Simmons  v.  Steamboat  Co.,  97  Mass.  361; 
Gilbert  v.  Railway  Co.,  160  Mass.  403,  36  X.  E.  60;    Feital  v.  Railr.ja  1 

(8) 


Ch.   1)  GENEKAI.    PRINCIPLES    GOVERNING    LIABILITY. 


§  3.     NEGLIGENCE  DEFINED. 

Actionable  negligence  is  the  unintentional  breach, 
of  a  duty  to  take  care  in  the  exercise  of  one's 
rights  and  duties,  proximately  producing  dam- 
age to  a  person  entitled  to  claim  observance  of 
that  duty.' 

Co..  109  Mass.  398;  New  Jersey  Traction  Co.  v.  Gardner  (N.  J.  Err.  & 
App.)  31  Atl.  89.3;  Laing  v.  Colder,  8  Pa.  St.  479;  Meier  v.  Railroad 
Co..  (>4  Pa.  St.  225;  McClenagbau  v.  Brock.  5  Rich.  Law  (S.  C.)  17.  2i;; 
Railroad  v.  Mitchell,  11  Heisk.  (Tenn.)  400;  Texas  &  P.  Ry.  Co.  v. 
Buckelew,  3  Tex.  Civ.  App.  272,  22  S.  W.  994;  Stokes  v.  Salton-stall. 
13  Pot.  181;    Dnnlap  v.  The  Reliance.  2  Fed.  240. 

§  3.  1  12  Quart.  Law  Rev.  p.  187,  April.  1896.  The  above  definition 
of  "negligence"  .seems  to  be  fairly  accurate,  including  all  the  essential 
elements  of  negligence,  and  excluding  all  nonessentials.  Numerous 
other  definitions  of  negligence  have  been  formulated.  One  of  the  most 
widely  quoted  is  that  of  Baron  Alderson  in  Blyth  v.  Waterworks,-  11 
Exch.  784:  "Negligence  is  the  omission  to  do  something  which  a  rea- 
sonable man,  guided  by  those  considerations  which  ordinarily  regulate 
the  conduct  of  human  affairs,  would  do,  or  doing  something  which  a 
prudent  and  reasonable  man  would  not  do."  This  definition  has  been 
criticised  as  being  "no  more  a  definition  of  negligence  than  of  tlie 
opium  habit,  or  the  excessive  use  of  intoxicating  liquors,  or  gambling, 
or  reckless  speculation,  or  forty  other  things."  Beach.  C>intrib.  Neg.  §  2. 
Another  definition  by  eminent  English  authority  is  that  of  Brett,  M.  R., 
in  Heaven  v.  Pender,  11  Q.  B.  Div.  503:  "Actionable  negligence  con- 
sists in  the  neglect  of  the  use  of  ordinary  care  or  skill  towards  a  per- 
son to  whom  the  defendant  owes  the  duty  of  ordinary  care  and  skill, 
by  which  neglect  the  plaintiff  has  suffered  injury  to  his  person  t)r  pro])- 
*^rty."  One  of  the  best  definitions  of  "negligence"  formulated  by  the 
judges  is  that  in  Caniff  v.  Navigation  Co.,  6(5  Mich.  638,  33  X.  W.  744: 
"Actionable  negligence  consists  in  the  omission  of  the  duty  to  observe 
due  care,  according  to  the  circumstances,  to  prevent  injuiy  to  the  per- 
son or  property  of  one  who  has  the  right  to  expect  that  the  duty  will  be 
performed."  The  supreme  court  of  Louisiana  has  fornuilatod  the  fal- 
lowing definition  in  Summers  v.  Railroad  Co.,  34  La.  Ann.  130:    "Ju- 

(0) 


§   4  CARRIERS  OF  PASSENGERS.  CCh.    1 

§  4.     ESSENTIAL  ELEMENTS  OF  NEGLIGENCE. 

As  will  be  seen  from  the  forej^oing  definition,  the  es- 
sential elements  of  negligence  are:  (1)  The  existence 
of  a  duty  to  exercise  care;  (2)  the  inadvertent  breach  of 
that  duty;  (3)  injury,  as  a  proximate  consequence,  to 
one  to  whom  that  duty  is  due/ 

ridicfil  negligence  is  the  inadvertent  omission  to  do  something  which  it 
would  be  the  legal  duty  of  a  prudent  and  reasonable  man,  guided  upon 
those  considerations  which  ordinarily  regulate  the  conduct  of  human  af- 
fairs, to  do,  or  the  inadvertently  doing  something  which  it  would  be 
the  legal  duty  of  a  prudent  and  reasonable  man  not  to  do.  such  act  or 
omission  being  on  the  part  of  a  responsible  Iniman  being,  and  being 
such  as  in  ordinary  natural  sequence  immediately  results  in  the  injury 
complained  of."  The  court  then  proceeds  to  point  out  the  merits  of 
the  definition  as  follows:  "This  definition,  though,  perhaps,  redund- 
ant, includes  unequivocally  all  essentials,  and  excludes  acts  not  pro^.- 
eriy  within  the  domain  of  negligence.  It  excludes  offenses  or  inten- 
tional wi'ongs.  It  excludes  mere  moral  duties.  It  excludes  irre- 
sponsible persons,  of  whom  vai'ious  classes  are  mentioned  by  Mr.  Whar- 
ton; and  it  excludes  all  acts  av  omissions  which,  though  they  may  be 
negligent  with  reference  to  certain  relations  or  contingencies,  have  no 
causal  connection  with  the  injury  complained  of."  The  civil  law  defi- 
nition is  stated  to  be  as  follows  in  Pollock  on  Torts  (Am.  Ed.)  p.  14: 
'"Nfgagcnce  is  the  failure  to  exercise  that  care  and  circumspection 
which  is  due  one  man  from  anotlier."  Other  definitions  are  given  in 
the  following  recent  cases:  L.  Wolff  Manuf'g  Co.  v.  Wilson,  152  111. 
9,  38  N.  E.  694;  Chicago,  B.  &  Q.  R.  Co.  v.  Johnson,  10.3  111.  512;  Brown 
V.  Congress  &  B.  St.  By.  Co.,  49  Mich.  153,  13  N.  W.  494;  Flint  &  P. 
M.  By.  Co.  V.  Stark,  38  Mich.  714;  Bridges  v.  Directors,  etc.,  of  North 
London  By.  Co.,  L,  R.  7  H.  L.  232. 

§  4.  1  In  Shear.  «S:  R.  Neg.  §  5,  negligence  is  analyzed  as  follows: 
"Negligence  consists  in  (1)  a  legal  duty  to  exercise  care;  (2)  a  breacli 
of  that  duty;  (3)  the  absence  of  distinct  intention  to  produce  the  pre- 
cise damage,  if  any,  which  actually  follows.  With  this  negligence,  in 
order  to  sustain  a  civil  action,  there  must  concur:  (1)  Damage  to  the 
plaintiff:  (2)  a  natural  and  continuous  sequence,  uninterruptedly 
(lOj 


Ch.    1)  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §   5 


g  5.     SAME— DUTY  TO  EXERCISE  CARE. 

An  essential  element  of  negligence  is  a  duty  to  exer- 
cise care.  If  there  is  no  sucli  dut},  there  caji  be  no 
negligence.^ 

The  duty  of  a  carrier  to  use  care  for  the  safety  of  his 
passenger  is  imposed  by  the  common  law."  It  is  true 
that  the  failure  of  a  carrier  to  exercise  proper  care,  re- 
sulting in  injury  to  a  passenger,  may  be,  and  sometimes 

connecting  the  breach  of  duty  with  the  damage,  as  cause  and  effect." 
In  Faris  v.  Ploberg,  134  Ind.  269,  33  N.  E.  102S,  it  is  said:  "In  every 
case  involving  actionable  negligence  there  are  necessarily  tlu'ee  ele- 
ments essential  to  its  existence:  (1)  The  existence  of  a  duty  on  the 
part  of  the  defendant  to  protect  the  plaintiff  from  the  injury  of  whirli 
he  complains;  (2)  a  failure  by  defendant  to  perform  that  duty;  and 
(3)  an  injury  to  the  plaintiff  from  such  failure  of  defendant.  Wheu 
these  elements  are  brought  together,  they  unitedly  constitute  negli- 
gence. The  absence  of  any  one  of  these  elements  renders  a  complaint 
bad  or  the  evidence  insuflBcient." 

§  5.  1  Carpenter  v.  Cohoes,  81  N.  Y.  21;  Tourtellot  v.  Ro>ebiook,  11 
Mete.  (Mass.)  460;  Sweeny  v.  Railroad  Co.,  10  Allen  (Mass.i  372.  It 
is  not  sufficient  to  show  that  a  defendant  owed  a  duty  which  it  failed 
to  discharge  to  some  one  or  class  of  persons  other  than  plaintiff.  But 
it  must  appear  that  there  existed  a  duty  to  the  plaintiff"  which  the 
defendant  failed  to  discharge.  Mexican  Nat.  Ey.  Co.  v,  Crum,  6  Tex. 
Civ.  App.  702,  25  S.  W.  1126. 

2  The  duty  of  a  carrier  to  use  due  and  proper  care  and  skill  in  con- 
veying a  passenger  does  not  necessarily  arise  out  of  contract  between 
the  passenger  and  the  carrier,  but  is  imposed  by  law.  Collett  v.  Kail- 
way  Co.  (1851)  16  Q.  B.  984.  "It  is  now  settled  that  a  railroad  carrier, 
by  its  acceptance  of  a  passenger  as  a  passenger,  comes  under  an  obliga- 
tion to  take  due  and  reasonable  care  for  his  safe  carriage,  which  obli- 
gation arises  by  implication  of  law,  and  independent  of  contract,  in 
that  it  may  exist  although  the  contract  of  carriage  is  illegal,  or  there 
i.s  no  express  contract  of  carriage."  New  York,  L.  E.  &  W.  R.  Co.  v. 
Ball,  53  N.  T.  Law,  283,  21  Atl.  1052;  Delaware,  L.  &  ^V.  R.  Co.  v. 
Trautwein,  52  X.  J.  Law,  169,  19  Atl.  178. 


§    6  CARRIERvS   OF   PASSENGERS.  (Ch.    1 

is,  regarded  as  a  breach  of  the  carrier's  contract.  But 
in  truth  this  duty  has  been  imposed  on  carriers  by  the 
common  law,  as  enunciated  by  the  courts,  quite  re- 
gardless of  any  contracts  which  they  may  make  with 
their  passengers.^  At  any  rate,  in  determining  what 
constitutes  negligence  on  the  part  of  the  carrier,  the 
result  is  the  same  whether  we  view  the  duty  to  exercise 
care  as  arising  out  of  contract  or  as  a  tort  independent 
of  contract,*  though  there  may  be  a  material  difference 
when  we  get  to  the  question  of  pleading  and  damages.' 

§  6.  SAME— INADVERTENT  BREACH  OF  DUTY. 

In  the  next  place,  the  decided  weight  of  modern  au- 
thorities is  that,  to  constitute  negligence,  the  breach  of 
duty  to  exercise  care  must  be  inadvertent,  and  not  in- 
tentional or  willful.^  An  intentional  or  willful  in- 
jury, wrongfully  inflicted  on  another,  either  in  his  per- 

3  For  example,  courts  have  very  generally  denied  earners  the  riglit 
to  relieve  themselves  by  contract  from  the  consequences  of  their  negli- 
gence, on  the  ground  that  the  liability  for  negligence  is  imposed  by  the 
common  law,  and  does  not  arise  out  of  contract.     See  post,  c.  28. 

4  Pol.  Torts    (Am.  Ed.)  p.  534. 
c  See  post,  §§  119,  422-425. 

§  0.  1  2  Jag.  Torts,  p.  821.  In  Parker  v.  Pennsylvania  Co.,  134  Ind, 
679,  34  N,  E.  .504,  it  is  said:  "  •Willfulnef'.s'  and  'negligence'  are  in- 
compatible terms.  Negligence  arises  from  inattention,  thoughtlessness, 
or  heedlessness,  while  willfulness  cannot  exist  without  purpose  or  de- 
sign. No  purpose  or  design  can  be  said  to  exist  where  the  injurious 
act  results  from  negligence,  and  negligence  cannot  be  of  such  degree 
as  to  become  willfuhiess."  "A  willful  injury  is  that  which  flows  from 
an  injurious  act  purposely  committed,  with  the  intent  to  commit  the 
injury.  In  determining  whether  an  act  is  done  wiUfully,  the  circum- 
stances of  the  case,  the  manner  in  which  the  act  was  done,  and  the 
effect  thereof  must  be  considered,  in  connection  with  the  presumption 
(12) 


Ch.    1)  GENKRAI.    PRINCIPLES    GOVERNING    LIABILITY.  §    8 

son  or  property,  renders  the  wrongdoer  liable  to  the  in- 
jured person,  without  regard  to  the  question  whether 
any  duty  to  exercise  care  existed.  But,  when  the  duty 
to  exercise  care  exists,  an  inadvertent  breach  of  it  is 
negligence,  and  constitutes  the  foundation  for  an  ac- 
tion in  damages, 

§  7.     SAME— PROXIMATE  CAUSE  OF  INJURY. 

In  the  third  place,  it  must  appear  that  the  breach  of 
duty  alleged  and  proved  is  the  proximate  cause  of  the 
injuries  for  which  plaintiff  sues.  The  entire  subject 
of  proximate  cause,  so  far  as  it  relates  to  tJie  subject  of 
carriers  and  passengers,  is  treated  in  a  subsequent 
chapter.* 

§  8.  DEGREE  OF  CARE  REQUIRED  OF  PASSENGER 

CARRIERS. 

For  the  safety  of  their  passengers,  common  carriers 
are  required  to  exercise  the  highest  degree  of 
care  reasonably  to  be  expected  from  human 
vigilance  and  foresight,  in  view  of  the  mode  and 
character  of  the  conveyance  adopted  and  consis- 
tent with  the  practical  prosecution  of  their  busi- 
ness.^ 

that  every  person  intends  the  natural  and  probable  consequences  of 
his  wrongful  acts;  and  an  unlawful  intent  may  be  inferred  from  con- 
duct which  shows  a  recliless  disregard  of  consequences,  and  a  will- 
ingness to  do  injury  by  purposely  and  voluntarily  doing  the  act.  with 
knowledge  tiiat  some  one  is  in  a  situation  to  be  unavoidably  injured 
thereby."  Citizens'  St.  Ry.  Co.  v.  Willoeby,  134  Ind.  .')63,  33  N.  E. 
C27,  citing  Palmer  v.  Railroad  Co.,  112  Ind.  256,  14  N.  E.  70. 

§  7.     1  Tost,  c.  9. 

§  S.    1  This  is  the  rule  expressly  enunciated  in  some  of  the  ca-ses.and 


§   8  CARRIERS  OF  PASSENGERS,  (Ch.    1 

EXCEPTION":  In  some  states,  the  carrier  is  re- 
quired to  exercise  only  ordinary  care  as  to  the 
construction  and  maintenance  of  stational  facili- 
ties.- 

is  believed  to  be  the  clear  result  of  all  the  cases  on  the  subject.  "Com- 
mon carriers  of  liassengers  are  required  to  do  all  that  human  care,  fore- 
sight, and  vigilance  can  reasonably  do,  consistently  with  the  mode  and 
character  of  conveyance  adopted,  and  the  practicable  prosecution  of 
the  business,  to  prevent  accidents  to  passengers  riding  upon  their  trains 
or  aligliting  therefrom."  Cliicago  &  A.  K.  Co.  v.  Byrum,  153  111.  131. 
38  N.  E.  578;  citing  Chicago.  B.  &  Q.  R.  Co.  v.  Mehlsaok,  131  111.  61, 
22  N.  E.  812;  Chicago  &  A.  R.  Co.  v.  Pillsbury,  123  111.  9.  14  N.  E.  22; 
Keokuk  N.  L.  P.  Co.  v.  Ti'ue,  88  111.  608;  Galena  &  C.  U.  R.  Co.  v.  Fay, 
16  111.  558;  Chicago,  B.  &  Q.  R.  Co.  v.  George,  19  111.  510.  "While  the 
law  demands  the  utmost  care  for  the  safety  of  passengers,  it  does  not 
require  railroad  companies  to  exercise  all  the  care,  skill,  and  diligence 
of  which  the  human  mind  can  conceive,  nor  such  as  will  free  the 
transportation  of  passengers  from  all  possible  risk.  They  are  not  re- 
quired, for  the  purpose  of  making  their  roads  perfectly  safe,  to  incur 
such  expense  as  would  make  their  business  wholly  unprofitable,  and 
drive  prudent  men  from  it.  They  are,  however,  independently  of  their 
pecuniary  ability  so  to  do,  required  to  provide  all  things  necessary  to 
the  security  of  the  passenger  reasonably  consistent  with  their  busi- 
nes.s  and  appropi-iate  to  the  means  of  conveyance  employed  by  them; 
and  to  adopt  the  highest  degree  of  practicable  care,  skill,  and  dili- 
gence that  is  consistent  with  the  operation  of  their  roads,  and  that  will 
not  render  their  use  impracticable  or  inefficient  for  the  intended  pur- 
poses of  the  same."  Aikansas  Midland  Ry.  v.  Canman,  52  Ark.  517. 
13  S.  W.  280,  citing  many  cases.  "When  it  is  said  that  they  are  held 
to  the  highest  degree  of  care  and  skill  for  the  safety  of  their  passengers, 
it  is  not  meant  that  they  are  required  to  use  every  possible  precau- 
tion, for  that,  in  many  instances,  would  defeat  the  very  objects  of  their 
employment.  There  are  certain  dangers  that  are  necessarily  incident 
to  that  mode  of  travel,  and  these  the  passenger  assumes  when  he  elects 
to  adopt  it.  But  all  that  is  meant  is  that  they  should  use  the  highest 
degree  of  care  that  is  reasonably  consistent  with  the  practical  conduct 
of  the  business."  Persliing  v.  Railroad  Co.,  71  Iowa,  561,  566.  32  N. 
W.  488,  and  cases  cited. 
2  For  the  degree  of  care  as  to  safety  of  stations,  etc..  see  post,  §  47. 
(14) 


Ch.   1)  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    9 

§  9.  SAME— REASON  OF  THE  RULE. 

The  attempt  to  ingraft  on  the  common  law  the  three 
degrees  of  negligence  described  by  the  terms  "slight," 
"ordinary,"  and  "gross,"  conceived  by  the  schoolmen 
of  the  middle  ages  to  correspond  to  the  division  of  the 
subject  in  the  Roman  law,  has  generally  been  success- 
fully resisted  by  our  courts  as  impracticable.^  As  a 
general  proposition,  the  tendency  of  the  courts  now  is  to 
hold  that  the  degree  of  care  required  in  a  given  case  de- 
pends on  circumstances,  and  must  be  commensurate 
with  the  situation.^  Carriers  of  passengers,  who  under- 
take for  a  reward  to  swiftly  transport  human  beings 
from  place  to  place  by  the  powerful  but  dangerous  in- 
strumentalities of  steam  and  electricity,  and  who  have 
intrusted  to  their  safe-keeping  the  most  valuable  of  all 
things, — human  lives, — must  exercise  the  highest  de- 
gree of  care,  which  simply  means  that  they  must  take 
all  these  things  into  account,  and  exercise  a  degree  of 
care  commensurate  with  the  situation.^ 

§  9.  1  "The  theory  that  there  are  three  degrees  of  negligence,  de- 
scribed by  the  terms  'slight,'  'ordinary.'  and  'gross,'  has  been  introduced 
into  the  common  law  from  some  of  the  commentators  of  the  Roman 
law.  It  may  be  doubted  if  the-e  tenns  can  be  usefully  applied  in  prac- 
tice. Tlieir  meaning  is  not  fixed,  or  capable  of  being  so.  One  degree 
thus  described  not  only  may  be  confounded  with  another,  but  it  is  quite 
impracticable  to  distinguish  between  them.  Their  signification  neces- 
sarily varies  according  to  the  circumstances,  to  whose  influence  the 
courts  have  been  forced  to  yield,  until  there  are  so  many  real  excep- 
tions that  the  rules  tliemselves  can  scarcely  be  said  to  have  a  general 
operation."     Per  Curtis,  J.,  in  Tlie  New  World,  16  How.  409,  474. 

a  2  Jag.  Torts,  pp.  816,  818,  and  cases  there  cited. 

3  Mitchell,  J.,  in  Hall  v.  Railroad  Co.,  46  Minn.  140.  49  X.  W.  2:!9. 
•'That  rule  does  not  rest  upon  any  technical  or  artificial  division  of  ueg- 

(15) 


I   9  CARRIERS  OP  PASSENGERS.  (Ch.   1 

Even  before  the  application  of  steam  as  a  motive 
power,  when  all  passenger  traffic  on  land  was  carried 
on  by  means  of  stage  coaches,  the  courts  united  in 
holding  that  carriers  must  exercise  the  "utmost  care 
and  skill,"  *  and  provide  for  the  safety  of  their  pas- 
sengers "as  far  as  human  care  and  foresight  will  go."  "* 
The  reason  for  this  rule  probably  lies  in  the  fact  that 
the  courts  were  unwilling  to  extend  to  common  car- 
riers of  passengers  the  rule  of  the  common  law  holding 
carriers  of  property  liable  as  insurers;  and  by  way  of 
compromise  this  high  degree  of  care  was  exacted  of 
passenger  carriers.  And  when,  in  comparatively  re- 
cent times,  the  application  of  steam  as  a  motive  power 
revolutionized  the  face  of  the  earth,  and  caused  the  en- 
tire carrying  traffic  to  fall  into  the  hands  of  wealthy 
and  powerful  corporations,  the  courts,  on  grounds  of 
public  policy,  continued  to  exact  from  them  the  high- 
est practicable  degree  of  care.®      In  the  subjoined  note 

ligence  into  grades  or  classes,  but  springs  naturally  from  an  applica- 
tion to  such  fac-ts  of  the  general  principle  that  a  man  of  ordinary  pru- 
dence is  required  to  exercise  a  care  proportionate  to  the  risks  he  as- 
sumes to  the  business  in  hand.  Where  he  undertakes  a  risk  involving 
safety  of  life  and  limb  to  those  with  whom  he  deals,  he  is  charged 
■with  a  care  proportionate  to  the  peril.  When  a  passenger  commits  his 
person  to  a  carrier  for  hire  for  transportation  over  rivers,  through 
cities,  in  the  night,— it  may  be  while  asleep,— at  a  speed  expressive  of 
the  progress  of  the  age  in  wliicli  we  live,  he  may  justly  demand  the 
exercise  of  such  care  on  the  part  of  the  carrier  against  disaster  as  in 
the  nature  of  things  such  undertaking  would  imply."  Furnish  v.  Mis- 
souri Pac.  Ry.  Co.,  102  Mo.  438,  13  S.  W.  1044. 

4  Lord  Ellenborough  in  Jackson  v.  Tollett  (1817)  2  Starkie,  37. 

6  Christie  v.  Griggs,  2  Camp.  79. 

6  In  Farwell  v.  Railroad  Co.,  4  Mete,  (^lass.)  49,  Chief  Justice  Shaw 
says  that  "the  rule  is  founded  on  the  expediency  of  throwing  the  risk 
upon  those  who  can  best  guard  against  it."  In  McDonough  v.  Lan- 
(10) 


Ch.    1)  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    9 

is  given  the  language  of  the  courts  as  to  the  degree  of 
care  required  of  passenger  carriers.^ 

pher,  55  Minn.  501.  57  N.  W.  152,  the  reason  for  requiring  a  liigher  de- 
gree of  care  from  a  carrier  to  a  passenger  tlian  from  a  master  to  a 
servant  is  thus  pointed  out:  "An  obvious  one  is  that  in  tlie  case  of 
the  passenger  he  neither  does  know,  nor  is  he  called  on  to  inform  him- 
self, whether  the  carrier  employs  competent  and  careful  servants  and 
fit  and  proper  machinery  and  means  of  performing  the  service,  but  he 
coumiits  himself  unreservedly  to  the  care  of  the  carrier;  while  the 
servant  in  most  cases  may  know,  and,  if  the  matter  is  open  to  observa- 
tion, is  bound  to  know,  whether  the  machinery  and  appliances  em- 
ployed by  the  master  are  fit  and  proper." 

~  "Highest  degree  of  care  and  diligence  and  skill."  Montgomery  & 
E.  Ry.  Co.  V.  Mallette,  92  Ala.  209,  9  South.  363;  Richmond  &  D.  R. 
Co.  V.  Greenwood,  99  Ala.  501.  14  South.  495;  Alabama  G.  S.  R.  Co. 
V.  Hill,  93  Ala.  514,  9  South.  722;  Louisville  &  N.  R.  Co.  v.  Jones,  83 
Ala.  376,  3  South.  902;  Georgia  Pac.  R.  Co.  v.  Love,  91  Ala.  432,  8 
South.  714.  See  Gadsden  &  A.  U.  Ry.  Co.  v.  Causler,  97  Ala.  235,  12 
South.  439.  "Highest  practical  degree  of  caro,  diligence,  and  skill."  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Sweet,  57  Ark.  287,  21  S.  W.  587;  St.  Louis 
&  S.  F.  R.  Co.  V.  Mitchell,  57  Ark.  418,  21  S.  W.  883.  But  see  George 
V.  Railway  Co.,  34  Ark.  61E:  Little  Rock  &  F.  S.  R.  Co.  v.  Miles,  40 
Ark.  298;  Railway  Co.  v.  Sweet,  60  Ark.  550,  31  S.  W.  571.  "Utmost 
care  which  is  consistent  with  the  nature  of  tlie  business."  Murray  v. 
Railroad  Co.,  66  Conn.  512,  34  Atl.  506;  Derwort  v.  Loomer,  21  Conn. 
245;  Hall  v.  Steamboat  Co.,  13  Conn.  320.  "Highest  degree  of  care 
and  prudence  which  is  consistent  with  the  practical  operation  of  their 
road  and  the  transaction  of  their  business."  Chicago,  P.  &  St.  li.  Ry. 
Co.  V.  Lewus,  145  111.  67,  33  N.  E.  ti60;  Chicago  &  A.  R.  Co.  v.  Arnol, 
144  111.  261,  33  N.  E.  204;  TuUer  v.  Talbot,  23  111.  357.  "Highest  degree 
of  care  and  skill."  Moore  v.  Des  Moines  &  Ft.  D.  R.  Co.,  69  Iowa,  491 
30  X.  "NY.  51;  Kellow  v.  Railroad  Co.,  68  Iowa,  470,  23  N.  W.  740.  and 
27  N.  W.  466;  Raymond  v.  Railway  Co.,  65  Iowa,  153,  21  N.  W.  4a".: 
Sales  V.  Stage  Co.,  4  Iowa,  546.  "Highest  degree  of  care."  liouisville 
&  J.  Ferry  Co.  v.  Nolan.  135  Ind.  60,  34  N.  E.  710;  Louisville,  X.  A.  & 
C,  Ry.  Co.  V.  Snyder,  117  Ind.  435,  20  N.  E.  284;  Bedford,  S.,  O.  cV:  B. 
R.  Co.  V.  Rainbolt,  99  Ind.  551.  "Highest  care  and  best  precaution 
known  to  practical  use,  and  which  are  consistent  with  the  mode  of 
transportation  adopted."      Southern  K.  Ry.  Co.  v.  ^^'alsll,  -15  Kan.  653, 

V.  1  FET.CAR.PA.S. 2  (17) 


§    10  CARRIERS   OF  PASSENGERS.  (Ch.    1 

§   10.     STANDARD  OF  CARE. 

The  courts  have  long  ago  laid  down  the  rule  that  in 
cases  of  negligence  defendant's  conduct  must  be  meas- 
ured by  the  foresight  and  caution  of  the  average  pru- 

26  Pae.  45;  Union  Pac.  Ry.  Co.  v.  Hand,  7  Kan.  380.  "Utmos^t  care 
and  skill  which  prudent  men  are  accustomed  to  use  under  like  circum- 
stances." Louisville  City  Ry.  Co.  v.  Weanis,  80  Ky.  420;  Louisville 
&  N.  R.  Co.  V.  Ritter's  Adm'r,  8")  Ky.  368,  3  S.  W.  591.  "The  diligence 
which  a  good  specialist  in  that  particular  line  of  business  woidd  exer- 
cise." Lehman  v.  Railroad  Co..  37  La.  Ann.  705;  Hanson  v.  Trans- 
portation Co.,  38  La.  Ann.  111.  "Are  bound  to  use  greater  than  ordi- 
nary care, — such  care  as  is  used  by  very  cautious  persons."  Libby  v. 
Railroad  Co.,  85  Me.  34,  20  Atl.  913;  Knight  v.  Railroad  Co.,  56  Me. 
234;  Edv.ards  v.  Lord,  49  Me.  279.  "Not  the  utmost  and  highest  ab- 
solutely, but  the  highest  o^hich  is  consistent  with  the  nature  of  their 
business."  I'hiladelphia,  W.  &  B.  R.  Co.  v.  Anderson,  72  Md.  519,  20 
Atl.  20.  "Utmost  care  and  diligent  e  in  providing  against  those  injuries 
which  human  care  and  foresight  can  guard  against."  Dodge  v.  Steam- 
boat Co.,  148  Mass.  219,  19  N.  E.  373;  Warren  v.  Railroad  Co.,  8  Allen 
(Mass.)  227;  White  v.  Railroad  Co.,  136  Mass.  321;  McElroy  v.  Rail- 
road Corp.,  4  Cush.  (Mass.)  400.  "Greatest  care  and  foi-esight."  Mc- 
Lean V.  Burbank,  11  Minn.  277  (Gil.  189).  "That  care,  pru  lence,  and 
caution  which  a  very  careful  and  prudent  person  would  use  and  exer- 
cise in  a  like  business  and  under  like  circumstances."  Smith  v.  Rail- 
road Co.,  108  Mo.  243,  18  S.  W.  971;  O'Connell  v.  Railway  Co.,  106  Mo. 
482.  17  S.  W.  494;  Willmott  v.  Railway  Co.,  106  Mo.  535,  17  S.  W.  490; 
Leslie  v.  Railway  Co.,  88  Mo.  50;  Gilson  v.  Railway  Co.,  76  Mo.  282; 
Morrissey  v.  Ferry  Co.,  43  Mo.  380;  Powers  v.  Union  Ry.  Co.,  60  Mo. 
App.  481;  Jacquin  v.  Cable  Co.,  57  Mo.  App.  320;  Haderlein  v.  Rail- 
road Co.,  3  Mo.  App. (jOl,  Append.  "Highest  degree  (  f  practicable  care." 
Kennon  v.  Gilmer,  5  Mont.  257,  5  Pac.  847.  "Extraordinary  care,  and 
the  utmost  skill,  diligence,  and  lumaan  foresight."  Si^ellman  v.  Ti'an- 
sit  Co.,  36  Neb.  890,  55  N.  W.  270.  "Utmost  care  and  diUgence  of  very 
cautious  persons."  Taylor  v.  Railway  Co.,  48  N.  H.  304.  "Every  pre- 
caution which  human  skill,  care,  and  foresight  can  provide."  Caldwell 
V.  Steamboat  Co.,  47  N.  Y.  282,  affirming  56  Barb.  425;  Hegeman  v. 
Railroad  Corp.,  13  N.  Y.  9.  24;  Brockway  v.  Lascala,  1  Edm.  Sel.  Cas. 
(18) 


Ch.    1)  GENERAL    PRINCIPLES   GOVERNING    LIABILITY.  §    10 

dent  man  standing  in  defendant's  shoes.  It  therefore 
follows,  whenever  an  adult  of  sound  mind  is  charged 
with  negligence,  that  it  is  no  defense  that  he  acted 
bona  fide  and  to  the  best  of  his  judgment.  This  rule 
was  formally  and  decisively  announced  in  Yaughan  v. 

(N.  Y.)  135.  "High  degree  of  care."  Lambeth  v.  Railroad  Co..  6'i  N. 
C.  494.  "Greatest  care  that  persons  do  wlio  are  engaged  in  business  of 
the  same  character."  Broolilyn  St.  R.  Co.  v.  Kelley,  6  Ohio  Cir.  Ct.  R. 
15"».  "All  that  human  care,  vigilance,  and  foresight  reasonably  can, 
in  view  of  the  character  and  mode  of  conveyance  adopted."  Elliott  v. 
Railway  Co.,  18  R.  I.  707,  28  Atl.  338,  and  31  Atl.  ()94;  Boss  v.  Rail- 
road Co.,  15  R.  I.  149,  1  Atl.  9.  "Such  a  high  degi-ee  of  foresight,  as 
to  possible  dangers,  and  .such  a  high  degree  of  prudence  in  guarding 
against  them,  as  would  be  used  by  very  cautious,  prudent,  and  compe- 
tent persons  under  the  same  circumstances."  International  &  G.  N.  R. 
Co.  V.  Welch,  86  Tex.  203,  24  S.  W.  390;  Missouri  Pac.  R.  Co.  v.  John- 
son, 72  Tex.  95,  10  S.  W.  325;  International  &  G.  X.  R.  Co.  v.  Under- 
wood, 64  Tex.  463;  Houston  &  T.  C.  R.  Co.  v.  Corbett,  49  Tex.  573; 
Texas  &  P.  Ry.  Co.  v.  Davidson,  3  Tex.  Civ.  App.  542,  21  S.  W.  68; 
Fordyce  v.  Chaucey,  2  Tex.  Civ.  App.  24,  21  S.  W.181;  Texas  Cent.  R. 
Co.  V.  Stuart,  1  Tex.  Civ.  App.  642,  20  S.  W.  962;  Fordyce  v.  Withers, 
1  Tex.  Civ.  App.  .540,  20  S.  W.  76(1;  Dallas  C.  T.  Ry.  Co.  v.  Randolph, 
8  Tex.  Civ.  App.  213,  27  S.  W.  925;  Texas  &  P.  Ry.  Co.  v.  Orr.  (Tex. 
Civ.  App.)  31  S.  W.  696;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Stricklin  (Tex.  Civ. 
App.)  27  S.  W.  1093;  Fort  Worth  &  D.  C.  Ry.Co.v.  Kennedy  (Tex.  Civ. 
App.)  35  S.AV.  335.  "Gi-eatest  possible  care  and  diligence."  Baltimore 
&  O.  R.  Co.  V.  Noell's  Adm'r,  32  Grat.  (Va.)  394;  Baltimore  &  O.  R.  Co. 
V.  Wightman's  Adm'r,  29  Grat.  (Va.)  4-31;  Parish  v.  Reigle,  11  Grat. 
(Va.)  697,  712.  "Highest  degi-ee  of  care  and  prudence."  Stars  v.  Rail- 
way Co.,  6  Wash.  227,  33  Pac.  389,  1081.  "Greatest  possible  care  and 
diligence."  Searle  v.  Railway  Co.,  32  W.  Va.  370,  9  S.  E.  248.  "Tlie 
carrier  is  required,  as  to  passengeis,  to  observe  the  utmost  caution  char- 
acteristic of  very  careful,  prudent  men.  He  is  responsible  for  injuries 
received  by  passengers  in  the  course  of  their  transportation  which 
might  have  been  avoided  or  guarded  against  by  the  exercise  upon  his 
part  of  extraordinary  vigilance,  aided  by  the  highest  skill."  Pennsyl* 
vania  Co.  v.  Roy,  102  U.  S.  451;  Goble  v.  Railioad  Co.,  Fed.  Cas,  No. 
5,488a;    Meyer  v.  Railway  Co.,  4  C.  C.  A.  221,  54  Fed.  116;    Philadel- 

(1!)) 


§10  CARRIERS   OP  PASSENGERS.  (Ch.    1 

Menlove/  In  that  case  Tindall,  C.  J.,  said :  "Instead 
of  saying  that  the  liability  for  negligence  should  be 
co-extensive  with  the  judgment  of  each  individual, — 
which  would  be  as  variable  as  the  length  of  the  foot  of 
each  individual, — we  ought  rather  to  adhere  to  the  rule 
which  requires  in  all  cases  a  regard  to  caution  such  as 
a  man  of  ordinary  prudence  would  observe." 

This  principle  applies  with  full  force  to  carriers  of 
passengers.  "Conduct  actuated  by  good  faith  and  an 
honest  purpose  to  avoid  injury  to  passengers  is  not 
equivalent  to  the  highest  care,  or  even  necessarily  of 
ordinary  care.  It  is  not  what  a  man  sincerely  intends 
doing,  and  does  with  sincere  purpose  to  a  given  end, 

phia  &  R.  R.  Co.  v.  Derby,  14  How.  485;  The  New  World,  16  How.  409, 
474.  "High  degree  of  cai-e."  Readhead  v.  Railway  Co.,  L,  R.  4  Q. 
B.  :id'.).  In  an  earlier  English  case  Chief  Justice  Erie  charged  the 
jury:  "Carriers  are  intrusted  with  most  important  interests, — with  hu- 
man lives,— and  a  jury  may  reasonably  require  an  amount  of  care  pro- 
portionate to  those  interests.  At  the  same  time  a  jury  would  not  be 
entitled  to  expect  the  utmost  care  that  could  possibly  be  conceived,  or 
the  highest  possible  degree  of  skill.  It  is  to  be  borne  in  mind  that  rail- 
ways themselves  are  of  recent  introduction,  and  that  their  manage- 
ment is  a  matter  of  experience  and  of  practical  knowledge  which  in- 
creases day  by  day.  It  is  not  to  be  expected  that  the  directors  sliall 
at  once  have  in  use  every  invention  or  discovery  of  science.  It  is  suffi- 
cient if  they  use  every  precaution  in  known  practical  use  for  the  safety 
and  convenience  of  passengers."  Ford  v.  Railway  Co.  (1862)  2  Fost. 
&  F.  730. 

§  10.  1  3  Bing.  N.  C.  475,  decided  in  1837.  See,  also.  Com.  v.  Pierce, 
138  Mass.  165,  where  Holmes.  J.,  said:  "If  a  man's  conduct  is  such 
as  would  be  reckless  in  a  man  of  ordinary  prudence,  it  is  i-eckless  in 
him.  Unless  he  can  bring  himself  within  some  broadly-defined  excep- 
tion to  general  rules,  the  law  deliberately  leaves  his  personal  equation 
or  idiosyncracies  out  of  account,  and  peremptorily  assumes  that  he 
has  as  much  capacity  to  judge  and  to  foresee  consequences  as  a  man 
of  ordinary  prudence  would  have  in  the  same  situation." 
(20) 


Ch.    1)  GENERAL    PRINCIPI.KS    GOVERNING    LIABILITY.  §    11 

that  determines  whether  in  doing  it  he  has  exercised 
the  care  demanded  by  the  situation,  but  the  inquiry  is 
to  be  resolved  upon  a  further  consideration  of  the  acts 
themselves.  A  negligent  act  is  none  the  less  negli- 
gently performed  because  of  the  good  faith  which  char- 
acterizes it."  -  Hence  the  fact  tliat  trainmen  did  all 
they  thought  necessary  to  ascertain  whether  a  grade 
crossing  with  another  railroad  was  clear  does  not  re- 
lieve the  company  from  liability  for  injuries  to  a  pas- 
senger in  a  collision,  if  they  in  fact  did  not  do  all  that 
the  dictates  of  the  utmost  prudence  would  have  sug- 
gested to  be  done.^ 

An  apparent  exception  to  this  principle  exists  where 
a  man  is  confronted  with  a  sudden  peril.  In  sucli  a 
case  his  failure  to  exercise  the  best  possible  judgment 
does  not  establish  lack  of  care  and  skill  on  his  part. 
This  rule  is  most  frequently  applied  in  favor  of  plain- 
tiffs charged  with  contributory  negligence,*  but  it  was 
recently  applied  by  the  New  York  court  of  appeals  in 
favor  of  a  carrier  of  passengers  charged  with  negli- 


gence." 


§  11.     HIGHEST  PRACTICABLE  CARE. 

That  the  degree  of  care  required  of  passenger  car- 
riers does  not  extend  beyond  the  highest  practicable 
degree  of  care  finds  many  illustrations  in  the  decided 
cases.      For  instance,  it  is  not  required  that  the  road- 

2  RiclinioiKl  &  D.  R.  Co.  v.  Greenwood,  1)9  Ala.  501,  11  South.  495. 
aid. 

*  See  post,  S§  If- 5-1.88. 

6  Wynn  v.  Railroad  Co.,  133  N.  Y.  575,  30  N.  E.  721,  reversing  (Coin. 
PI.)  14  N.  Y.  Supp.  172. 

(21) 


§    12  CARRIERS   OF  PASSENGERS.  (Ch.    1 

bed  of  railroads  should  be  laid  with  ties  of  iron  and  cut 
stone,  though  in  that  way  the  danger  arising  from 
wooden  ties  subject  to  decay  would  be  avoided/  Nor 
is  it  required  that  railroad  embankments  be  construct- 
ed of  such  a  width  that  a  derailed  train  or  car  will 
stop  before  reaching  the  edge.^ 

§  12.     UNFORESEEN  ACCIDENTS. 

Since  carriers  of  passengers  are  bound  to  use  only 
the  highest  degree  of  care  reasonably  to  be  expected 
from  human  foresight,  it  follows  that  they  are  not 
bound  to  guard  against  accidents  which  human  fore- 
sight cannot  reasonably  anticipate.  The  test  of  lia- 
bilit}'  is  not  whether  the  carrier  used  such  particular 
foresight  as  is  evident,  after  the  accident,  might  have 
averted  injury,  but  whether  it  used  that  degree  of  care 
and  prudence  which  very  cautious  and  prudent  persons 
would  have  used,  under  the  apparent  circumstances  of 
the  case,  to  prevent  the  accident,  without  reasonable 
knowledge  that  it  was  likely  to  occur.^      "It  is  always 

§  11.  1  Pittsburg,  C.  &  St.  L.  R.  Co.  v.  Thompson,  56  111.  138;  In- 
dianapolis &  St.  L.  R.  Co.  V.  Horst,  93  U.  S.  291. 

2  Pershing  v.  Railway  Co.,  71  Iowa,  561,  560,  32  N.  W.  488.  Negli- 
gence on  the  part  of  a  street-car  driver  is  the  want  of  such  care  as  a 
reasonably  skillful  and  prudent  street-car  driver  would  observe  under 
similar  circumstances;  and,  where  the  only  negligence  complained  of 
by  a  passenger  i.s  the  negligence  of  the  driver,  the  court  is  not  bound  to 
instruct  further  as  to  the  degree  of  care  required  of  street  railwajs 
generally.     Durnett  v.  Railway  Co.  (Tex.  Civ.  App.)  37  S.  W.  .336. 

§  12.    1  Libby  v.  Railroad  Co.,  85  Me.  44,  26  Atl.  943;    Bowen  v.  Rail 
road  Co..  18  N.  Y.  408;  Fredericks  v.  Railroad,  157  Pa.  St.  103.  27  Atl. 
G80.     It  is  the  duty  of  a  street  railway,  in  the  construction  of  its  cars, 
to  provide  against  every  danger  to  passengers  that  is  probable  and  to 

(22) 


Ch.    1)  GENERAL    PK[NCIPLES    GOVERNING    LIABILITY.  §    12 

a  question  whether  the  mischief  coiikl  have  been  rea- 
sonably foreseen.  Nothiii.u  is  so  easy  as  to  be  wise 
after  tlie  event."  -  Perhaps,  tlie  most  striking  illus- 
tration of  this  rule  is  found  in  the  ease  of  Cleveland  \. 
;Xew  Jersey  Steamboat  Co.,''  which  was  in  the  courts  of 
!Xew  Yoi'k  for  manv  years.  As  a  ferryboat  swung 
from  its  wharf,  a  man  attempted  to  jump  to  the  shore, 
and  fell  into  the  water.  There  was  a  cry  of  "Man 
overboard!"  accompanied  with  an  instantaneous  rush 
of  passengers  to  the  side  of  the  boat  whence  the  cry 
proceeded,  and  plaintiff  was  shoved  overboard, 
through  an  open  gate,  in  the  rush.  The  court  of  ap- 
j)eals  finally  held  that  the  failure  to  guard  against  such 
an  accident  by  closing  the  gate  before  the  boat  started 
from  the  wharf  was  not  sufficient  evidence  of  negli- 
gence to  take  the  case  to  the  jury.  "The  combination 
of  circumstances  was  so  extraordiuarv  that  the  failure 
to  foresee  their  possibility,  and  to  guard  against  their 
happening,  cannot,  in  any  fair  and  proper  view,  be  call- 
ed negligence."  * 

As  a  corollary  to  this  general  x)roposition,  it  may  be 
stated  that  where  an  appliance  used  in  the  carriage  of 

be  reasonably  apprehended,  1)ut  not  against  such  as  are  so  remote  as 
to  be  barely  possible.  Keller  v.  Railway  Co.,  14!)  l*a.  St.  (!.".,  24  Atl. 
159. 

2  Bramwell,  B.,  in  Cornnian  v.  Railroad  Co.,  4  Hurl.  &  X.  7S1.  78(5. 
But,  in  an  action  for  injuries  sustained  by  tlie  sudden  starting  of  a  car 
while  alighting,  it  is  proper  to  refuse  to  cliarge  tiiat  passenger  carriers 
arc  nol  bound  to  adopt  such  particular  precautions  as  it  is  apparent, 
aflcr  the  accident,  might  have  prevented  the  injury.  AVheatou  v. 
Railroad  Co.,  30  Cal.  5*J0. 

s  12.-)  X.  Y.  2!)0,  20  X.  E.  327,  revensing  7  X.  Y.  .Supp.  28;  s.  c.  08  X. 
Y.  :'i»>,  sa  X.  Y.  027,  7  .\.  Y.  St.  Kcp.  .7.»s,  .iiid  r,  Ilu.i.  r>23. 

*  Cleveland  v.  Steandjoat  Co.,  12.j  N.  Y.  2!Jli,  2i;  X.  E.  :;27. 

(23) 


§    12  CARRIERS   OF  PASSENGERS.  (Ch.    1 

passengers  is  not  obviously  dangerous,  has  been  in 
daily  use  for  years,  and  has  uniformly  proved  adequate, 
safe,  and  convenient,  it  may  be  continued  without  the 
imputation  of  negligence/  Thus  the  fact  that  the  bot- 
tom of  the  railing  around  a  steamer's  deck  is  two  feet 
above  the  deck  will  not  render  the  steamship  company 
liable  for  the  death  of  a  passenger,  who  slipped  through 
this  open  space  while  trying  to  recover  his  hat,  which 
had  been  blown  off  by  the  wind.®  Nor  is  it  negligence 
for  an  elevated  railroad  company  to  maintain  a  guard 
rail  at  the  end  of  its  station  platform  of  such  a  height 
as  to  strike  a  passenger  who  clings  to  a  moving  train/ 
But  it  should  be  borne  in  mind  that  the  question  is 
not  whether  the  peril  was  one  to  which  passengers  had 

6  Lafflin  v.  Railroad  Co..  106  N.  Y.  136,  12  N.  E.  599;  Illinois  Cent. 
R.  Co.  V.  Hobbs,  58  111.  App.  130.  The  proposition  is  quite  well  estab- 
lished by  authority  that  it  is  competent  to  prove  as  to  a  structure  uot 
apparently  daujierous,  and  which  has  been  in  use  a  considerable  time, 
that  no  accident  has  occurred  from  its  use  or  maintenance  prior  to  the 
time  of  an  accident  resulting  in  an  injury  to  a  person,  and  attributable 
to  it,  although  such  person  was  at  the  time  a  passenger  of  the  party 
sought  to  be  charged  with  liability  for  the  injury.  Wilder  v.  Railway 
Co.,  10  App.  Div.  364,  41  N.  Y.  Supp.  931. 

6  Dougan  v.  Transportation  Co.,  56  N.  Y.  1,  affirming  6  Lans.  (N.  Y.) 
430.  The  same  principle  was  apphed  Avhere  a  child  slipped  between 
the  upper  and  lowei-  rails  of  the  guards  alongside  a  ferry  bridge,  and 
fell  into  the  water.  Loftus  v.  Ferry  Co.,  84  N.  Y.  455,  aHirming  22 
Hun,  33. 

7  Robinson  v.  Railway  Co.  (Com.  PI.)  25  N.  Y.  Supp.  91.  A  railroad 
company  is  uot  chargeable  with  negligence  in  constructing  acinder  plat- 
form at  its  station,  the  distance  between  which  and  the  lower  cAr  step 
is  from  20  to  23  inches,  and  it  is  not  liable  to  a  passenger  who,  from 
Bome  unexplained  cause,  sprained  his  knee  while  boarding  a  train 
when  stationary  at  this  place.  Illinois  Cent.  R.  Co.  v.  Hobbs,  58  111. 
App.  130.  It  is  the  duty  of  a  street  railway,  in  the  construction  of  its 
cars,  to  provide  against  every  danger  to  passengers  that  is  probable  or 

(24) 


Ch,    1)  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    12 

long  been  subjected,  but  whether  it  is  such  as  might 
and  ought,  in  tlie  e:s:ercise  of  reasonable  diligence,  to 
have  been  known  to  and  guarded  against  by  the  car- 
rier, in  the  exercise  of  that  high  degree  of  care  which  it 
owes  to  its  passengers.®  "'Accidents  sometimes  are 
extraordinarv  in  their  character,  and  it  is  difficult  to 
anticii)ate  their  occurrence;  but,  if  there  be  negligence 
or  want  of  the  proper  degree  of  caution  and  prudence 
on  the  part  of  the  carrier,  the  extraordinary  nature  of 
the  accident  will  not  excuse  from  liability.  The  very 
object  of  the  strictness  of  the  rule  in  requiring  the  high- 
est degree  of  care  and  foresight  to  be  exercised  is  to 
avoid  all  possible  accidents  and  injury."  "  Thus,  w^here 
a  passenger,  riding  on  the  platform  of  an  elevated  car, 
was  jostled  into  the  opening  between  two  cars,  the  fact 
that  the  road  had  been  in  operation  for  six  years,  and 
that  300,000  passengers  had  been  carried  daily,  without 
an  accident  of  this  kind  happening  before,  is  not  con- 
clusive in  the  company's  favor  on  the  question  of  negli- 
gence, but  it  is  for  the  jiwj  to  determine  whether  or  not 
the  company  should  have  foreseen  the  danger  of  such 

to  be  reasonably  apprehended,  but  not  against  such  as  are  so  remote 
as  to  be  barely  possible.  Keller  v.  Railroad  Co.,  149  Pa.  St.  Gr>,  24  Atl. 
lo9. 

^  Illinois  Cent.  R.  Co.  v.  O'Connell,  59  111.  App.  463,  affirmed  in  100 
111.  G;5G.  43  N.  E.  704. 

9  Metropolitan  R.  Co.  v.  Falvey,  5  App.  D.  C.  176.  In  this  case  it 
appeared  that  an  open  summer  car  was  so  constructed  that  the  seats 
projected  beyond  the  floor  at  ilie  sides,  and  a  rail  placed  at  the  side 
to  prevent  parscngors  from  falling  off  was  18  inches  above  the  floor. 
A  four  year  old  child,  getting  up  from  the  seat,  fell  from  the  car, 
tlirough  this  open  space,  between  the  flfior  and  the  rail,  and  was  in- 
jured. Held,  tiiat  tlie  question  whether  the  cai  was  pi'operly  con- 
structed was  for  the  jury. 

(25) 


§    13  CARRIERS   OF  PASSENGERS.  (Ch.    1 

an  accident,  and  guarded  against  it/"  So,  although 
the  death  of  a  passenger  could  not  reasonably  be  antic- 
ipated from  the  use  of  a  stool  in  alighting  from  a  train, 
jet  if  the  use  of  the  stool  was  negligence  on  the  part  of 
the  company,  without  contributory  negligence  by  de- 
ceased, and  the  injury  was  tlie  proximate  result  of  that 
negligence,  the  company  is  liable/ 


11 


§  13.     DUTY   TO  ADOPT  NEW    DEVICES— FINANCIAL 

ABILITY. 

Carriers  of  passengers  are  bouud  to  adopt  such  ap- 
paratus and  appliances  as  science  and  skill  shall  from 
time  to  time  make  known,  and  experience  shall  prove 
to  be  valuable  in  a  considerable  degree  in  diminishing 
the  dangers  of  railroad  travel,  provided  such  improve- 
ments can  be  procured  at  reasonable  expense/  And 
when  a  railroad  company  finds  out  an  expedient  far  bet- 
ter than  an  old  one,  the  company  is  not,  except  in  very 
peculiar  cases,  to  wait  till  it  has  used  up  the  old  plant, 
but  it  is  bound  to  adopt  the  new  method  at  once/ 
Thus  it  has  been  held  that  the  failure  of  a  railroad  com- 
pany, earning  dividends,  to  equip  its  ijassenger  trains 
with  the  Westing-house  air  brakes,  which  had  been 
fully  tested  and  gone  into  general  use  throughout  the 
United  States,  was  evidence  of  negligence/      So,  too, 

10  aierwin  v.  Railway  Co.,  48  Hun,  608,  1  N.  Y.  Snpp.  2GT,  affirmed 
in  113  N.  Y.  6.50,  21  N.  E.  415. 

11  Gulf,  C.  &  S.  F.  R.  Co.  V.  Southwiek  (Tex.  Civ.  App.)  30  S.  W. 
592. 

§  13.    1  Kentucky  Cent.  R.  Co.  v.  Thomas  (1880)  79  Ky.  160,  and 
cases  cited. 
2  Hanson  v.  Railway  Co.  (1872)  20  Wkly.  Rep.  297. 
a  Kentucky  Cent.  R.  Co.  v.  Tliomas,  supra. 
(26) 


Ch.   1)  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    13 

the  failure  to  equip  a  passenger  elevator  with  an  air 
cushion  to  resist  a  fall — a  device  known  to  the  proprie- 
tor of  the  elevator — was  held  evidence  of  negligence.* 
To  a  certain  extent,  however,  the  duty  of  carriers  to 
adopt  expensive  devices  for  the  safety  of  passengers  is 
limited  by  their  financial  ability,  and  the  character  of 
their  business.  "A  common  carrier  of  passengers  con- 
tracts in  law  that  the  kind  of  conveyance  he  adopts 
shall  be  a  reasonably  safe  and  convenient  mode  of 
transportation,  for  its  kind.  The  modes  of  conveyance 
in  use  by  passenger  carriers,  both  by  land  and  water, 
vary  as  the  exigencies  of  the  traflic  and  its  remunera- 
tive character  require  and  justify.  To  require  all  car- 
riers to  adopt  alike  expensiAe  provisions  for  the  safety 
of  passengers,  without  reference  to  the  nature  of  their 
employment,  or  the  amount  of  their  business,  would  be 
impracticable  and  absurd.  It  would  be  like  requiring 
the  public  higlnvays  in  the  commonwealth  to  be  kept  in 
a  like  state  of  repair,  without  reference  to  the  nature  of 
the  country  through  which  they  pass,  or  the  amount  of 
travel  which  they  accommodate."'  "If  the  means  of 
transportation  are  adapted  to  the  reasonably  safe  car- 
riage of  passengers  upon  that  particular  kind  of  con- 
veyance, and  the  carrier  exercises  the  utmost  skill  in 
the  use  of  such  means,  he  has  discharged  his  legal  obli- 
gation." ^  A  railway  constructed  through  a  thiuly-set- 

4  Hodges  V.  Pcrcival,  132  111.  5.S.  23  N.  E.  423. 

B  Le  Barron  v.  Ferry  Co.,  11  Allen  (Mass.)  312.  In  this  case  the  fail- 
ure of  a  ferry  company  to  adopt  an  improved  drop,  in  use  by  another 
ferry  company,  was  held  not  to  be  nesligence  per  se,  but  a  question  for 
the  jury.  "Railroad  companies  must  lieej)  pace  with  .science  and  art 
and  modern  Improvements  in  their  ai)plicatiou  to  the  carriage  of  pas- 

(1!T) 


S    13  CARRIERS   OF   PASSENGERS.  (Cll.    1 


S 


tied  country,  moving  but  little  freight  and  few  passen- 
gers, and  running  its  trains  at  a  low  rate  of  speed,  can- 
not be  expected  to  be  equipped  and  operated  in  the 
same  manner  as  is  necessary  in  the  case  of  a  railway 
running  through  a  densely  populated  territory,  and 
moving  a  large  volume  of  traffic/  Thus  it  has  been 
held  that  the  rule  requiring  a  carrier  to  exercise  the 
highest  degree  of  care  does  not  necessitate  the  running 
of  separate  trains  for  passenger  traffic,  if  the  business 
of  the  railroad  company  is  not  sufficient  to  warrant  it 
in  doing  so.'  So  a  short-line  road,  doing  a  small  busi- 
ness,  and  running  only  mixed  trains,  is  not  required  to 
apply  all  the  delicate  checks  and  guards  that  are  in 


use/ 


But  while  x^overty  niay  be  an  excuse  for  not  adopt' 
ing  all  minute  safety  devices,  or  for  not  running  sep- 
arate  passenger  and  freight  trains,  railroad  companies 
are  bound  to  furnish  a  roadbed  and  equipment  reason- 
ably safe  for  travel,  entirely  independent  of  any  ques- 
tion of  financial  ability.  It  has  been  held  that  the  in- 
ability of  a  railroad  company,  for  want  of  means,  to 
build  a  sound  bridge,  is  no  defense  in  an  action  for  in- 
juries to  a  passenger  caused  by  the  giving  way  of  the 
bridge;  for  the  company  ought  not  to  have  undertaken 
to  carry  passengers  until  it  could  do  so  with  safety.® 
Is'or  Avill  a  railroad  company  be  permitted  to  show  that 

sengers,  but  are  not  responsible  for  the  unknown,  as  well  as  the  new." 
Meier  v.  Railroad  Co.,  64  Pa.  St.  225. 

6  Arkansas  M.  Ry.  Co.  v.  Canman,  52  Ark.  517,  13  S.  W,  2S0;  Ken- 
tueky  Cent.  R.  Co.  v.  Thomas,  supra. 

7  Arkansas  M.  Ry.  Co.  y.  Canman,  52  Ark.  517,  13  S.  W.  280. 

8  International  &  G.  N.  Ry.  Co.  v.  Copeland,  60  Tex.  325. 

9  Oliver  v.  Raih'oad  Co.,  1  Edm.  Sel.  Cas.  (N.  Y.)  5S9. 

(28) 


Ch.   1)  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    14 

it  had  furnished  its  passengers  with  a  more  expensive 
roadbed  and  equipment  than  its  business  would  war- 
rant/" 

§  14.     CUSTOM  AND  PRACTICE  OF  OTHER  CARRIERS. 

Though  the  practice  of  the  best  and  most  skillfully 
operated  railroads  in  the  counti'v  is  not  the  test  by 
which  to  determine  whether  a  railroad  carrier  has  ex- 
ercised the  requisite  degree  of  care,  yet,  if  the  practice 
of  the  railroads  so  managed  has  been  found  by  actual 
experience  to  be  sufiacieiit  and  safe,  other  roads,  whose 
business  is  to  be  carried  on  under  like  circumstances, 
are  warranted  in  adopting  them.  "To  hold  otherwise 
would  be  to  hold  that  railroad  companies,  in  the  con- 
struction and  operation  of  their  roads,  could  not  avail 
themselves  of  the  experience  of  others,  and  that  the 
construction  and  operation  of  every  road  must,  to  a 
great  extent,  be  a  matter  of  experiment."  ' 

But  the  practice  of  other  lines  cannot  serve  for  com- 
parison on  a  question  of  diligence,  unless  it  is  shown 
that  these  lines  are  properly  equipped  and  managed,  or 
are  so  recognized  and  reputed  to  be  by  experts  in  the 
business.'      And  if  the  appliances  used  by  a  railroad 

10  GuU,  C.  &  S.  F.  R.  Co.  V.  Southwick  (Tex.  Civ.  App.)  30  S.  W.  51*2. 

§  14.  1  Pershins  v.  Railroad  Co.,  71  Iowa,  561,  569,  32  N.  W.  488. 
In  an  action  for  injury  to  a  passenger  t-aused  by  tlie  l)ri'alduy  of  a 
brake  chain,  it  is  error  to  cliarse  that  the  '"apphances  used  by  defend- 
ant must  be  the  best  that  skill  and  science  have  contrived,  and  which 
are  in  practical  use,"  where  there  is  no  evidence  that  any  other  or 
safer  appliances  than  those  used  by  defendant  were  in  use.  -SVynn  v. 
Railroad  Co.,  10  App.  Div.  13,  41  N.  Y.  Supp.  ^Jo.  As  to  evidence  of 
custom  and  usase,  see  post.  §  448. 

2  Augusta  Ry.  Co.  v.  Clover,  92  Ga.  132,  18  S.  E.  400. 

(29) 


§    ]4  CARRIERS  OF  PASSENGERS.  (Ch.    1 

company  in  its  passenger  traffic  are  obviously  unsafe, 
the  use  of  similar  appliances  on  other  roads  will  not 
absolve  it  from  liability.^  Thus  a  railroad  company 
which  has  failed  to  construct  a  platform  at  one  of  its 
usual  stopping  places,  and  which  compels  passengers, 
in  alighting,  to  use  a  narrow  box,  having  a  surface  of 
about  one  square  foot,  is  not  absolved  from  liability,  as 
matter  of  law,  by  the  fact  that  such  boxes  are  in  gen- 
eral use  on  railroads,  and  that  the  box  in  question 
had  been  used  by  passengers  for  a  long  time  without  an 
accident/  So  it  is  negligence  to  carry  an  extra  coup- 
ling pin  on  a  car  platform  in  such  a  way  as  to  project 
two  or  three  inches  above  the  platform,  and  the  com- 
pany is  liable  for  injuries  to  a  female  passenger,  whose 
dress  caught  in  the  projecting  pin  as  she  was  about  to 
alight,  and  who  was  thrown  to  the  ground,  though  the 
pin  was  in  the  place  where  extra  pins  are  usually  and 
customarily  carried,  and  though  no  accident  had  ever 
before  happened  by  reason  thereof. ' 

«  Dougherty  v.  Railway  Co.,  128  Mo.  33,  30  S.  W.  317. 

4  Missouri  Pac.  Ky.  Co.  v.  Wortham.  73  Tex.  2.5,  10  S.  AV.  741.  "It 
would  be  unreasonable  to  say  that  a  small  box  or  stool  which  present- 
ed the  surface  of  about  one  square  foot,  and  rested  upon  a  base  but  a 
little  more  extensive,  and  which  Avas  shown  to  be  capable  of  being- 
overturned  at  least  by  an  incautious  step,  could  be  as  safe  as  a  plat- 
form, such  as  is  in  ordinary  use  amons  railroads.  If  it  were  not,  the 
juiy  were  authorized  to  find  that  the  company  had  not  exercised  the 
degree  of  care  required  of  them."  So  the  fact  that  for  eight  months  a- 
railroad  company  persisted  in  the  dangerous  practice  of  throwing  mail 
sacks  from  its  moving  trains  on  a  station  platform  is  not  conclusive 
that  it  is  not  negligent  to  do  so.  Hughes  v.  Railway  Co.,  127  IVIo. 
447,  30  S.  W.  127. 

5  Illinois  Cent.  R.  Co.  v.  O'Connell,  o\)  111.  App.  463,  affirmed  160  III. 
636,  43  N.  E.  704. 

(30) 


Ch.    1)  GKNKRAL    PRINCIPLES    GOVERNING    LIABILITY.  ^    15 

Upon  tlie  other  hand,  AAiiere  a  passenger  charges  a 
carrier  with  iiegligence  in  using  an  unsafe  appliance^ 
the  use  of  safer  api)liances  by  other  carriers  is  an  ele- 
ment to  be  considered  by  the  jury  on  tlie  question  of 
negligence.  For  example,  the  question  whether  it  is 
negligence  in  a  steamship  company  to  leave  the  rudder 
cliain  exposed  on  the  deck  of  its  vessel  is  for  the  jury, 
where  there  is  evidence  that  the  rudder  chain  is  gen- 
erally boxed  in  <»u  well-constructed  steamers.®  But 
an  omnibus  proprietor  is  not  chargeable  with  negli- 
gence becanse  there  is  no  back  to  an  omnibus  step; 
those  Avithont  backs,  as  well  as  those  with  backs,  being 
in  general  use,  and  each  having  its  advantage  and  dis- 
advantage; the  solid  back,  while  preventing  all  pos- 
sibility of  the  foot  slipping  through,  being  more  liable 
to  till  with  mud  and  snow,  and  cause  the  foot  to  slip, 
and  it  not  appearing  that  there  had  ever  been  another 
accident  by  a  person's  foot  slipping  through  an  open 
back  step/ 

§  15.  ACT  OF  GOD  AND  OF  PUBLIC  ENEMY. 

A  common  carrier  of  passengers,  who  is  not  an  in- 
surer of  the  passenger's  safety,  and  is  liable  only  for 
negligence,  is  of  course  entitled  to  the  exemption  en- 
joyed by  a  common  carrier  of  property,  whose  liability 
as  an  insurer  does  not  extend  to  the  act  of  God  or  of 

6  (jaroui  v.  Comyaguie  Xatioiiale  (Com.  I'l.)  14  X.  V.  Supp.  797.  af- 
firmed in  131  N.  y.  G14.  30  N.  E.  8G5.  • 

7  Frobisher  v.  Transpoitation  Co.,  l.jl  N.  Y.  431,  45  N.  E.  S-'jii,  re- 
versing 81  Hun,  544,  30  N.  Y.  Supp.  KI09.  But  see  contra,  with  refer- 
ence to  open  steps  on  street  cars,  j^oeliucke  v.  Railnad  Co.,  3  Mi.-c. 
Rep.  40,  22  N.  Y.  Supp.  712. 

(31) 


§16  CARRIERS   OF  PASSENGERS.  (Ch.    1 

the  public  enemies.  This  subject,  so  far  as  it  pertains 
to  carriers  of  passengers,  will  be  discussed  in  the  fol- 
lowing chapter/ 

§   16.     SAME    DEGREE    OF    CARE  REQUIRED    WHAT- 
EVER MODE  OF  CONVEYANCE  ADOPTED. 

While  the  same  high  degree  of  care  is  required  of  all 
common  carriers  of  passengers,  whatever  mode  of  con- 
veyance is  adopted,  yet  in  the  application  of  the  rule 
the  law  will  take  into  account  the  nature  of  the  convey- 
ance; and  the  passenger  must  assume  the  usual  risks 
incident  to  travel  by  the  mode  of  conveyance  he  selects, 
when  operated  with  the  recjuisite  degree  of  care  and 
skill.^ 

§  35.  1  See  post.  §§  ^2,  33.  lu  Nichols  v.  ^NTarsland,  2  Exch.  Div.  1,  it  is 
said:  "Tli«  ordinary  rule  of  law  is  that  wheu  the  law  creates  a  duty, 
and  the  party  is  disabled  from  performing  it,'  without  any  default  of 
his  own,  by  the  act  of  God  or  the  king's  enemies,  the  law  will  excuse 
him;  but  when  a  party,  by  liis  own  contract,  creates  a  duty,  he  is 
bound  to  make  it  good,  notwithstanding  any  act  of  inevitable  neces- 
sity." 

§  16.  1  Inchanapolis  &  St.  L.  R.  Co.  v.  Horst,  93  U.  S.  2!)1 ;  Topeka 
City  Ey.  Co.  v.  Higgs,  38  Kan.  375,  16  Pac.  667;  Schilling  v.  Railroad 
Co.  (Minn.)  68  N.  AV.  1083.  Of  course,  no  distinction  is  to  be  made 
against  a  common  carrier  simply  because  it  is  a  corporation.  A  rail- 
way company  is  not  charged  with  a  higher  degree  of  care  and  diligence 
in  the  transpoi-tation  of  passengers  than  is  exacted  of  private  indi- 
viduals under  similar  circumstances.  Gulf,  C.  &  S.  F.  R.  Co.  v.  War- 
lick  (Indian  Ter.)  35  S.  W.  235. 
(32) 


Ch.    1)  GE^ERAL    PRINCIPLES    GtA'KUMNG    LIABILITY.  §    17 

§  17.     SAME— FREIGHT  AND  CONSTRUCTION 

TRAINS. 

Thus  one  who  is  accepted  as  a  passenger  on  a  freight 
train  is  entitled  to  the  same  degree  of  care  due  passen- 
gers on  regular  trains,  except  that  in  taking  the  freight 
train  the  passenger  assumes  the  usual  risks  incident  to 
traveling  in  freight  trains  managed  by  prudent  and 
competent  men.^  While  life  and  limb  are  as  valuable, 
and  the  right  to  safety  is  the  same,  in  the  caboose  as  in 
the  palace  car,-  yet  it  must  be  remembered  that  in  the 
operation  of  freight  trains  the  primary  object  is  the 
transportation  of  freight,  and  the  appliances  used  are, 
and  are  knov^-n  by  the  passenger  to  be,  adapted  to  that 
business.^      Hence  the  law  does  not  require  freight 

§  17.  1  McGee  v.  Railway  Co.,  C2  Mo.  2<J8,  4  S.  W.  739;  Hazard  v. 
Railroad  Co.,  1  Biss.  503,  Fed.  Cas.  No.  6,275;  Delaware,  L.  &  W.  R. 
Co.  V.  Asliley,  14  C.  C.  A.  308.  67  Fed.  209;  Ohio  &  M.  R.  W.  Co.  v. 
Dickerson,  59  Ind.  317;  Woolerj-  v.  Railway  Co..  107  Ind.  3S1,  8  N. 
E.  226;  Indianapolis.  B.  &  W.  Ry.  Co.  v.  Beaver,  41  Ind.  493;  Dilling- 
ham V.  Wood,  8  Tex.  Civ.  App.  71,  27  S.  W.  1074. 

2  Ohio  V.  R.  Co.  V.  Watson's  Adm'r,  03  Ky.  654,  21  S.  W.  244. 

8  Chicago  &  A.  R.  Co.  v.  Arnol,  144  111.  261.  33  X.  E.  20-1,  citing 
many  cases.  "It  is  neither  expected  nor  required  that  a  passenger  on 
a  freight  train  shall  be  provided  with  all  the  comforts  and  con- 
veniences which  are  usually  afforded  pa.s.>-engers  on  a  regular  pas- 
senger train;  but  there  is  on  that  account  no  diminution  in  the  obli- 
gation of  those  in  charge  of  the  freight  train  to  carry  its  passengers 
with  becoming  and  all  necessary  care,  and  to  deliver  them  safely  at, 
or  conveniently  near,  their  respective  places  of  destination.  It  is  the 
duty  of  a  railroad  company  engaged  in  the  transportation  of  passen- 
gers, whether  by  freight  or  passenger  trains,  to  so  run  and  manage  its 
trains,  and  so  liandle  its  pas.sengers,  that  no  one  shall  be  injured  by 
its  own  negligence."  New  York,  C.  &  St.  I..  Ky.  Co.  v.  Doane.  115 
Ind.  435,  439,  17  N.  E.  913.     See,  also,  Chicago,  B.  &  Q.  R.  Co.  v.  Ilaz- 

V.  1  FKT.CAR.PAS. 3  (33) 


§    17  CARRIERS   OF   PASSENGERS.  (Ch.    1 

trains  to  be  fitted  out  with  air  brakes  and  bell  pulli*,  nor 
a  brakeman  to  be  stationed  on  every  car,  for  that  would 
destroy  the  use  of  the  train  for  its  primary  purpose; 
but  the  law  does  emphatically  require  that  the  highest 
degree  of  care  be  exercised  that  is  practicable  and  con- 
sistent with  tlie  efficient  use  of  the  means  and  appli- 
ances adopted.*  One  who  voluntarily  takes  passage 
on  a  freight  train  takes  the  risk  of  any  jolts  or  jars 
that  may  occur  on  such  a  train  not  caused  by  the  negli- 
gence of  train  hands,  but  which  are  usual  and  conse- 
quent on  such  mode  of  travel.^ 

zaid,  26  III.  373;  Pennsylvania  Co.  \.  Newmeycr,  129  Ind.  401,  28  N. 
E.  860. 

4  Indianapolis  &  St.  L.  R.  Co.  \.  Horst,  93  U.  S.  291;  Chicago  &  A. 
R.  Co.  V.  Arnol  144  111.  261,  33  N.  E.  204.  When  the  caboose  which 
is  usually  attached  to  the  fveiiiht  train  is  in  the  repair  shop,  and  a 
common  box  car,  with  temporary  rade  seats,  is  substituted  to  accom- 
modate passengers,  and  the  use  of  such  box  car  is  more  dangerous,  the 
degree  of  care  on  the  part  of  tlie  company  to  prevent  the  starting  of 
the  train  Avith  a  violent  jerk  is  thereby  increased.  Missouri  Pac.  Ry. 
Co.  V.  Holcomb,  44  Kan.  332,  24  Pac.  467.  A  railroad  company  which 
andertakes  to  transport  stock  drovers  on  the  top  of  its  freight  trains 
must  manage  and  run  the  train  with  skill  and  prudence  in  order  to 
prevent  their  being  thrown  off.  The  degree  of  care  and  diligence  in 
running  and  managing  the  train  must  correspond,  in  a  measure,  with 
the  mode  of  conveyance  adopted  by  the  company  and  the  person  or 
thing  to  be  conveyed.  There  may  be  great  negligence  in  subjecting 
a  train,  conveying  passengers  on  top  of  the  cars,  to  certain  jerks  and 
bumps  which  could  not  affect  the  safety  of  passengers  transpoi'ted  in 
inclosed  cars.  Tibby  v.  Railroad  Co..  82  Mo.  292.  A  passenger  on  a 
cattle  train  is  entitled  to  demand  the  highest  degree  of  care  and  dili- 
gence, the  same  as  if  he  had  taken  any  other  ti'ain.  Indianapolis  & 
St.  L.  R.  Co.  V.  Horst,  93  U.  S.  291. 

5  Crine  v.  Railroad  Co.,  84  Ga.  651,  11  S.  E.  555;  Guffey  v.  Railroad 
Co.,  53  Mo.  App.  462.  One  who  rides  on  r  freight  train  without  pay- 
ment of  fare,  and  who  goes  on  an  open  flat  car,  rather  than  in  the 

(34) 


Ch.    1)  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    17 

In  Mississippi  it  is  enacted  that  railroad  companies 
shall  not  be  liable  for  injnry  to  "any  passenger  upon 
any  freight  train,  not  being  intended  for  both  pas- 
sengers and  freight,"  "except  for  the  gross  negligence 
or  carelessness  of  its  servants."  '      It  has  been  held 
that  a  train  which  is  strictly  a  freight  train,  with  only 
the  appliances  of  such  a  train,  on  which  persons  are 
not  sought  to  be  induced  to  take  passage  by  the  offer 
of  other  accommodations  than  are  afforded  by  freight 
trains,  cannot  be  said  to  be  intended  for  both  passen- 
gers and  freight,  though  persons  may  become  passen- 
gers by  going  into  the  caboose;  and  that  consequently, 
for  injuries  to  a  passenger  riding  in  the  caboose,  the 
company  is  liable  only  if  caused  by  the  gross  negli- 
gence or  carelessness  of  its  servants.^ 

Where  a  railroad  has  not  yet  been  opened  for  regu- 
lar passenger  traffic,  and  only  a  mixed  construction 
and  passenger  ti'ain  is  operated,  the  company  cannot 
be  expected  to  apply  all  the  checks  and  guards  that  are 
in  use  on  established  passenger  lines;  and  a  passen- 
ger, who  knows  the  facts,  will  be  presumed  to  take 

passenger  coach  attached  to  the  train,  is  only  entitled  to  such  security 
as  that  mode  of  conveyance  affords,  and  cannot  recover  for  injuries 
sustained  by  a  sparli  or  cinder  emitted  from  the  locomotive  strilvinj;  his 
eye.  Higgins  v.  Railroad  Co.,  73  Ga.  140.  Failure  to  have  a  bell  rope 
on  a  way  freight  and  mixed  accounuodation  train  will  not  justify  the 
jury  in  finding  the  comjiany  negligent,  where  all  the  evidence  shows 
It  to  have  been  impracticable,  owing  to  taking  in  or  setting  out  cars  at 
stations,  the  varying  length  of  the  train,  the  danger  to  brakemen  from 
the  bell  rope,  and  the  dithculty  of  pulling  it  on  loug  trains.  Oviatt 
V.  Railway  Co.,  43  Minn.  300,  45  N.  W.  4:;0, 

6  Ann.  Code  Miss.  1892,  §  3'jo~. 

1  Perkins  v.  Railroad  Co.,  60  Miss.  726. 


§    18  CARRIERS   OF   PASSENGERS.  (Ch.    1 

sucli  risks  as  are  necessarily  incident  to  the  new  condi- 
tion of  the  track  and  the  train  on  which  he  travels.^ 


§  18.     SAME— STREET  CARS. 

The  rnle  requiring  the  highest  degree  of  care  applies 
not  only  to  carriers  of  passengers  operating  steam  rail- 
roads, but  also  to  those  operating  street  cars  and  other 
vehicles  drawn  by  horses/  There  is  a  dictum  to  the 
contrary  in  one  of  the  New  York  cases,-  and  also  a  de- 
cision that  only  ordinary  care  for  the  safety  of  the  pas- 
senger is  required  at  the  hands  of  street-car  lines  oper- 
ated by  horse  power.^  But  the  great  weight  of  au- 
thority, even  in  New  York,  requires  the  highest  degree 
of  care,^  bearing  in  mind  that  care  and  negligence  are 

8  San  Antonio  &  A.  P.  Ry.  Co.  v.  Robinson,  79  Tex.  608,  15  S.  W. 
584.  A  railroad  company  wiilcli  carries  passengers  on  construction 
trains  must  exercise  the  !-ame  degree  of  diligence,  with  that  character 
of  trains,  as  with  its  regular  pa-ssenger  coaches,  for  the  safety  of  the 
persons  and  lives  of  its  passengers.  Ohio  &  M.  R.  Co.  v.  Muliliug. 
30  111.  9. 

§  18.  1  Heucke  v.  Railroad  Co.,  G9  Wis.  401,  34  N.  W.  243;  Van  de 
Venter  v.  Railroad  Co.,  26  Fed.  32;  Louisville  Ry.  Co.  v.  Park,  96  Ky. 
580.  29  S.  W.  455;  SuUivan  v.  Riiihvay  Co.,  133  Mo.  1.  34  S.  W.  .506; 
Brown  v.  Railway  Co.  (Wash.)  47  Pac.  890;  West  Chicago  St.  R.  Co. 
V.  Xash,  64  111.  App.  548.  As  to  its  passengers,  a  street-railway  com- 
pany is  required  to  exercise  the  highest  degree  of  skill  and  care  which 
may  reasonably  be  expected  of  intelligent  and  prudent  persons  engaged 
in  that  business,  in  view  of  the  instrumentahties  employed  and  the  dan- 
gers to  be  naturally  apprehended;  and  it  is  error  to  instruct  that  only 
ordinary  care  is  required.  Payne  v.  Railway  Co.,  15  Wash.  522,  46 
Pac.  1054. 

2  Unger  v.  Railroad  Co.,  51  N.  Y.  501. 

3  Stierle  v.  Railway  Co.  (Com.  PI.;  1895)  34  N,  Y.  Supp.  185,  Pryor. 
J.,  dissenting. 

4  Maverick  v.  Railroad  Co.,  36  N.  Y.  378;  Coddington  v.  Railroad 
Co.,  102  N.  Y.  m,  5  N.  E.  797. 

l3G) 


Ch.    1)  GENERAL    PRINCIPLES  GOVERNING    LIABILITY.  §    18 

relative  terms,'  and  that  the  means  and  instrumentali- 
ties used  to  protect  the  safety  of  passengers  may  differ 
with  the  different  modes  of  conveyance."  The  rule  it- 
self extends  to  the  management  of  the  cars  and  track, 
and  to  all  arrangements  necessary  for  the  safety  of 
passengers  as  respects  accidents  from  collision  or  oth- 
erwise." 

AVhen  electricity  is  used  as  the  motive  power,  the 
rule  is  applied  in  all  its  strictness.'  "The  agent  em- 
ployed, common  experience  has  taught,  is  one  dan- 
gerous to  life,  even  when  the  utmost  skill  and  prudence 
of  best  trained  electricians  are  exercised.  It  is  a 
subtle,  imponderable,  death-dealing  element  or  fluid. 
Of  its  nature  or  the  laws  governing  it  very  little  is 
known,  even  among  the  few  most  advanced  in  the 
studv  of  it.  It  mav  be  harnessed,  utilized  as  a  motive 
power,  and  made  to  perform  much  economic  service  in 
mechanics,  but  as  to  its  nature  and  vagaries  nothing  is 
known.  It  is  full  of  surprises,  and  deals  injury  and 
death  under  Avhat  is  deemed  the  most  prudent  manage- 
ment, and  under  what  are  supposed  to  be  the  circum- 
stances least  liable  to  inflict  injury.     In  the  use  of 

6  Dougherty  v.  Railroad  Co.,  81  Rio.  325. 

6  Topeka  City  Ry.  Co.  v.  Higgs,  38  Kan.  375,  16  Pac.  G67. 

7  Smith  V.  Railway  Co.,  82  Minn.  1,  18  N.  W.  827.  At  a  crossing  of 
a  street  railway  and  an  ordinary  steam  railroad,  the  street  railway,  for 
the  safety  of  its  passengers,  is  bound  to  exercise  the  highest  degree  of 
care  and  prudence,  and  the  utmost  human  slcill  and  furesight,  to  guard 
against  collision  with  engines  on  the  steam  railroad.  Coddingtou  v. 
Railroad  Co.,  102  N.  Y.  66,  5  N.  E.  797. 

8  Cogswell  V.  Railroad  Co.,  5  Wash.  46.  31  Tac.  411;  Denver  Tram- 
way Co.  V.  Reid,  4  Colo.  App.  53,  35  Tac.  209. 

(37) 


§    20  CARRIERS   OF  PASSENGERS.  (Ch.    1 

such  an  agent,  extraordinary  care  in  its  management 
is  required."  ' 


§  19,     SAME— STAGE  COACHES. 

Very  stringent  terms  have  been  employed  by  the 
courts  in  laying  down  the  rule  with  respect  to  carriers 
by  stage  coach.  Stage  coach  proprietors,  who  carry 
passengers  for  compensation,  are  responsible  for  all 
injuries  and  accidents  to  passengers  which  might  have 
been  prevented  by  human  care  and  foresight.  They 
are  consequently  bound  to  furnish  good  and  strong 
coaches  and  harness,  gentle  and  well-broken  horses, 
skillful  and  prudent  drivers,  and  the  smallest  degree 
of  negligence  in  these  particulars  will  render  the  pro- 
prietors liable  for  any  injury  to  passengers.^ 

§  20.     SAME— VESSELS. 

The  rule  that  common  carriers  of  passengers  are 
bound  to  use  a  high  degree  of  care  applies  to  carriers 
transporting  passengers  on  sailing  vessels,^  as  well  as 
on  steamboats  ^  and  ferryboats.^      The  rule  extends  to 

»  Denver  Ti-amway  Co.  v.  Reid,  4  Colo.  App.  53,  35  Pac.  269. 

§  19.  1  Fi-ink  v.  Coe,  4  G.  Greene  (Iowa)  555;  Peck  v.  Neil,  3  Mc- 
Lean, 22,  Fed.  Cas.  No.  10.892;  Maury  v.  Talmadge,  2  McLean,  157, 
Fed.  Cas.  No.  9,315;  Gallagher  v.  Bowie,  66  Tex.  265,  17  S.  W.  407; 
Ryan  v.  Gilmer,  2  Mont.  517. 

§  20.    1  The  Oriflamme,  3  Sawy.  397,  Fed.  Cas.  No.  10,572. 

2  Russ  V.  The  War  Eagle,  14  Iowa,  363;  Sherlock  v.  Ailing,  44  Ind. 
184. 

8  Hazman  v.  Improvement  Co.,  50  N.  Y.  53,  affirming  2  Daly,  130. 
(38) 


Ch.   1)  GENERAL    PRINXIPLES    GOVERNING    LIABILITY.  §    22 

all  the  machinery  aud  arrangements  connected  with 
the  boats,  and  to  their  management  and  navigation.* 

§  21.     SAME— PASSENGER  ELEVATORS. 

Within  the  past  few  years,  the  courts  have  exacted 
from  proprietors  of  passenger  elevators  the  highest  de- 
gree of  care  for  the  safety  of  passengers.  It  is  held 
that  no  distinction  in  principle  exists  between  the  de- 
gree of  care  required  from  a  carrier  of  passengers 
horizontally,  by  means  of  railway  cars  or  stage 
coaches,  and  one  who  carries  them  vertically,  by 
means  of  a  passenger  elevator.^ 

§  22.     NO  DISTINCTION  BETWEEN  DIFFERENT 
CLASSES  OF  PASSENGERS. 

The  law  makes  no  distinction,  as  to  the  degree  of 
care  required  for  the  safety  of  passengers,  between 
those  traveling  on  first-class  tickets  and  those  travel- 
ing in  a  lower  class  for  a  smaller  fare.  The  law  im- 
poses on  carriers  of  passengers  the  highest  degree  of 
practicable  care,  and  no  distinction  has  ever  been 
made  between  carriers  of  particular  classes  of  pas- 
sengers.^ 

4  Sherlock  v.  AUing,  44  Ind.  184;  Hazman  v.  Improvement  Co..  50 
N  Y   53,  affirming  2  Daly,  130.     See,  also,  post,  §  405. 

§  21  1  Mitchell  V.  Maiker,  10  C.  C.  A.  306,  62  Fed.  139;  Id..  54 
Fed.  637;  Ti-eadwell  v.  Whittior,  80  Cal.  574,  22  Pac.  266;  noodsell 
V.  Taylor,  41  Minn.  207,  42  N.  W.  873.     See,  also,  po.st,  §  209. 

§  22.  1  Garoni  v.  Compagnie  Nationale  (Com.  PI.)  14  N.  Y.  Supp. 
797  affirmed  131  N.  Y.  614,  30  N.  E.  865.  The  fact  that  a  passenger 
travels  in  an  emigrant  car.  for  a  less  rate  of  fare  than  charged  on  regu- 
lar passenger  cars,  does  not  relieve  the  carrier  of  the  duty  to  use  duo 

(31)) 


§    23  CARRIERS  OF  PASSENGERS.  (Ch.    1 

§  23.     DUTY   EXTENDS  TO  VEHICLES    OTHER  THAN 
THE  ONE  IN  WHICH  THE  PASSEN- 
GER IS  CARRIED. 

Not  only  must  the  carrier  exercise  a  high  degree  of 
care  and  skill  with  reference  to  the  management  of 
the  particular  vessel  or  vehicle  in  which  he  is  carrying 
his  passenger,  but  he  must  exercise  the  same  high  de- 
gree of  care  in  the  management  of  other  vessels  or  ve- 
hicles under  his  control  to  prevent  injury  to  the  pas- 
senger. Thus,  where  a  steamboat  company  owns  two 
vessels,  it  owes  to  a  passenger  in  one  of  them  the  exer- 
cise of  the  highest  degree  of  care  and  skill  in  the  man- 
agement of  the  other,  to  prevent  a  collision  between 
them.  It  is  not  sufflcient  that  it  uses  ordinary  care 
and  skill  in  the  management  of  the  other. ^  The  same 
principle  applies  to  the  management  of  railroad  trains 
owned  and  operated  by  the  same  company.^ 

But  this  high  degree  of  care  is  required  to  be  exer- 
cised by  a  carrier  only  towards  his  own  passengers, 
and  not  towards  the  passengers  of  another  company. 
Thus  a  street-railroad  company  is  not  required  to  ex- 
ercise this  high  degree  of  care  towards  the  passengers 
of  another  company  having  an  intersecting  track.^ 

care  to  see  that  berths  are  properly  secured  in  the  daytime,  so  that 
they  will  not  fall  on  passengers.  Northern  Pac.  R.  Co.  v.  Hess,  2 
Wash.  St.  383,  2ij  Pac.  836. 

§  23.  1  Sherlock  v.  Ailing,  44  Ind.  184. 

2  See  post,  §§  88,  89. 

8  Schneider  v.  Railroad  Co.,  1.33  N.  Y.  583,  30  N.  E.  752,  affirming  59 
N.  Y.  Super.  Ct.  536,  15  N.  Y.  Supp.  556. 
(40) 


Ch.    1)  GENKRAL   PRINCIPLES    GOVERNING    LIABILITY.  §    25 

§  24.     STATUTORY  LIABILITY. 

Tims  far  we  have  been  considering;  what  may  be 
called  the  common  law  of  the  subject  in  hand;  that  is, 
the  principles  evolved  by  the  courts  in  dealing  with 
common  carriers  of  passengers,  independent  of  any  leg- 
islation on  the  subject.  In  some  of  the  states,  how- 
ever, the  duty  of  the  carrier  for  the  safety  of  his  pas- 
sengers has  been  defined  by  statute,  but  in  the  main 
the  departure  from  common-law  principles  has  been 
slight.  Indeed,  in  Texas  it  has  been  expressly  enacted 
that  "the  duties  and  liabilities  of  carriers  in  this  state 
shall  be  the  same  as  are  prescribed  by  the  common  law, 
and  the  remedies  against  them  shall  be  the  same,  ex- 
cept where  otherwise  provided  by  this  title."  * 

§  25.     SAME— CALIFORNIA  CODE. 

The  California  Code,  which  has  also  been  adopted 
verbatim  in  several  other  states,  provides  that  "a  car- 
rier of  passengers  for  reward  must  use  the  utmost  care 
and  diligence  for  their  safe  carriage,  must  provide 
everything  necessary  for  that  j)urpose,  and  must  ex- 
ercise to  that  end  a  reasonable  degree  of  care  and 
skill."  ^  This  statute  practically  adopts  the  common- 
law  rule,  and  it  is  held  in  California  that  a  common  car- 

§  24.  1  Sayles'  Civ.  St.  Tex.  art.  277.  Gen.  St.  Kan.  18S9,  par.  1250, 
provides  that  railroad  companies  in  this  state  shall  be  liable  for  all 
damages  done  to  person  or  property,  when  done  in  consequence  of  any 
neglect  on  tlie  part  of  the  companies. 

§  25.  1  Civ.  Code  Cal.  §  2100;  Code  Mont.  1895,  §  2790,  and  Comp. 
Laws  Dak.  1887,  §  3838,  are  identical  with  this  section. 

(41) 


§    26  CARRIERS   OF  PASSENGERS.  (Cil.    1 

rier  of  passengers  for  hire  is  bound  to  use  the  greatest 
care  and  diligence  in  the  transportation  of  passengers, 
consistent  witli  the  carrying  on  of  his  business.-  It 
has  been  further  held  that  this  statute  creates  no  dig 
tinction,  as  to  the  degree  of  care  required,  between 
trains  devoted  entirely  to  passenger  traffic,  and  mixed 
trains,  carrying  both  passengers  and  goods.  "Those 
who  travel  on  mixed  trains  assume  the  extra  risk 
necessarily  incident  to  such  trains  or  the  traffic;  the 
carrier  using  such  diligence  and  care  as  the  Code  re- 
quires on  passenger  trains,  so  far  as  such  care  is  pos- 
sible, and  reasonably  consistent  with  the  freight  busi- 
ness." ' 

§  26.     SAME— GEORGIA  CODE. 

The  Georgia  Code  binds  a  carrier  of  passengers  to 
"extraordinary  diligence  on  behalf  of  himself  and  his 
agents  to  protect  the  lives  and  persons  of  his  pas- 
sengers; but  he  is  not  liable  for  injuries  to  the  person 
after  using  such  diligence."  ^  Extraordinary  dili- 
gence is  defined  to  be  "that  extreme  care  and  caution 
which  very  prudent  and  thoughtful  persons  use"  in 
and  about  similar  matters.-  Under  these  statutes  the 
carrier  is  bound  to  exercise  something  more  than  "all 

2  CaiT  V.  Railroad  Co.,  98  Cal.  366,  33  Pac.  213. 

3  Fisher  v.  Kailroad  Co.,  89  Cal.  399,  26  Pac.  894.  In  this  connec- 
tion it  should  be  noted  that  Civ.  Code  Cal.  §  483,  provides  that  when 
fare  is  talien  for  transporting  any  passenger  on  any  baggage,  wood, 
gravel,  or  freight  train,  the  same  care  must  be  talien,  and  the  same 
responsibility  is  assumed  by  the  corporation,  as  for  passengers  on 
passenger  cars. 

§  2G.  1  Code  Ga.  18^2,  §  20G7. 
2  Code  Ga.  18S2,  §  2062. 
(42) 


Ch.    1)  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    2(> 

ordinary  and  reasonable  care  and  diligeme';  ^  but,  on 
the  other  hand,  he  is  not  bound  to  take  the  greatest 
possible  degree  of  care  in  the  discharge  of  duties  to 
passengers,*  nor  even  the  utmost  care  and  diligence.' 
"I'here  is  a  substantial  difference  between  the  highest 
possible  degree  of  human  foresight  and  care  and  that 
degree  of  diligence  which  is  actually  observed  by  very 
prudent  and  thoughtful  persons."  "      This  extraordi- 
nary diligence  is  required,  no  matter  what  means  of 
conveyance  may  be  employed  to  carry  the  passenger. 
It  applies  as  well  when  the  passenger  is  carried  on  a 
street  car  '  or  on  a  freight  train,*  as  it  does  when  he  is 
carried  on  a  regular  passenger  train.      But  what  may 
amount  to  extraordinary  diligence  with  respect  to  one 
class  of  trains  may  not  amount  to  it  with  respect  to 
another  class.     The  standard  of  diligence  is  the  same, 
but  the  manner  of  its  exercise  must  depend  upon  the 
circumstances  of  the  case,  taking  into  consideration 
the  character  of  the  train,  and  the  manner  in  which  it 
is  usually  made  up  and  run,  aud  in  which  the  cars  are 
usually  coupled  to  one  another,® 

8  Crawford  v.  Railroad,  62  Ga.  566. 

*  East  Tennessee,  V.  &  G.  Ry.  Co.  v.  Green,  95  Ga.  736,  22  S.  B.  658. 
6  East  Tennessee,  V.  &  G.  Ry.  Co.  v.  Miller,  95  Ga.  738,  22  S.  E.  660. 

6  Id. 

7  City  &  S.  Ry.  v.  Findley,  76  Ga.  311,  citing  Holly  v.  Railroad,  61 

Ga.  215. 

6  Ball  V.  Mabry,  91  Ga.  781,  18  S.  E.  64,  citing  Crine  v.  Railway  Co.. 
84  Ga.  651,  11  S.  E.  555;  Chattanooga  R.  &  C.  R.  Co.  v.  Huggins,  89 
•Ga.  495,  15  S.  E.  848. 

•  BaU  V.  Mabry,  91  Ga.  781,  18  S.  E.  64. 

(43) 


§  27  CARRIERS  OF  PASSENGERS.  (Cll.  1 

§  27.  SAME— NEBRASKA  STATUTE. 

A  radical  departure  from  the  common  law  is  made 
by  the  Nebraska  statute.  It  is  enacted  that  "every 
railroad  company  shall  be  liable  for  all  damages  in- 
flicted upon  the  person  of  passengers  while  being 
transported  over  its  road,  except  in  cases  where  the  in- 
jury done  arises  from  the  criminal  negligence  of  the 
person  injured,  or  when  the  injury  complained  of  shall 
be  the  violation  of  some  express  rule  or  regulation  of 
said  road  actually  brought  to  his  or  her  notice."  ^ 
Though  this  statute  has  been  in  force  since  1867,  it 
does  not  seem  to  have  been  given  its  full  effect  until 
lately.  In  a  case  decided  in  1873,  the  statute,  though 
relied  on  in  the  brief,  was  ignored  by  the  court,  and  it 
was  held  that  a  carrier  of  passengers  is  liable  only  for 
negligence,  and  that  he  does  not  warrant  the  safety  of 
passengers,  but,  as  far  as  human  care  or  foresight  go, 
he  must  provide  for  their  safe  conveyance.^  In  later 
cases,  however,  it  is  held  that  railroad  companies  are 
insurers  of  the  safety  of  their  passengers,  except  as 
against  the  gross  negligence  of  such  passengers,  or  the 
violation  of  some  rule  of  the  company  brought  to  their 
notice.^     Under  this  statute,  to  warrant  a  recovery 

§  27.  1  Comp.  Laws  Neb.  1S93,  p.  G2S.  c.  72,  art.  1,  §  3.  For  crim- 
inal carelessness  of  passenger,  see  post,  §  195. 

2  McClary  v.  Railroad  Co.,  3  Neb.  44.  The  railroad  company  was 
held  not  liable  for  injuries  to  a  passenger  caused  by  the  train  being 
blown  from  the  track  by  what  undoubtedly  state  loyalty  caused  the 
court  to  call  a  "sudden  gust"'  of  wind. 

3  Chicago,  B.  &  Q.  R.  Co.  v.  Landauer,  39  Neb.  803,  58  N.  W.  434; 
Union  Pac.  R.  Co.  v.  Torter,  38  Neb.  226,  56  N.  W.  SOS;    Missouri  Pac. 

(44) 


Ch     1)  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    28 

against  a  railroad  company,  it  is  only  necessary  to 
shoAv  that  the  person  injured  was,  at  the  time,  being 
transported  as  a  passenger  over  the  defendant's  line 
of  railroad,  and  that  the  injury  resulted  from  the  man- 
agement or  operation  of  the  raih'oad.  A  presumption 
thereupon  arises  that  such  management  or  operation 
was  negligent,  and  it  can  be  met  only  by  showing  that 
the  injury  arose  from  the  criminal  negligence  of  tlie 
party  injured,  or  that  it  was  the  result  of  the  violation 
of  some  express  rule  or  regulation  of  the  railroad  com- 
pany, actually  brought  to  the  notice  of  the  passenger.* 
The  statute  applies,  not  only  to  actions  by  injured 
passengers,  but  also  to  actions  by  third  persons  for 
damages  sustained  in  consequence  of  such  injuries,  as 
by  a  husband  for  loss  of  services,  etc.,  caused  by  in- 
juries to  his  wife.''  But  the  statute  does  not  seem  to 
be  applied  to  street  railroads.®  It  goes  without  say- 
ing that  this  statute  has  been  vigorously  assailed  by 
railroad  companies  as  unconstitutional,  but  its  valid- 
ity has  been  uniformly  upheld/ 

§  28.  PROVINCE  OF  COURT  AND  JURY  ~- 

In  actions  for  neg-ligence  there  may  be  a  dispute 
(1)  as  to  the  existence  of  the  facts  relied  on 
to   establish  negligence;    (2)  as  to   the  exercise 

R.  Co.  V.  Baier.  37  Neb.  2;«,  55  X.  W.  910;    Fiemout,  E.  &  M.  V.  R. 
Co.  V.  French,  48  Neb.  (538,  G7  N.  W.  472. 

4  Chicago,  B.  &  Q.  R.  Co.  v.  Hague,  48  Neb.  97,  6G  N.  \\'.  1000. 

B  Omaha  &  R.  V.  R.  Co.  v.  ChoUette,  41  Neb.  .578,  59  N.  W.  921. 

0  Spelhiiau  v.  Transit  Co.,  36  Neb.  890,  55  N.  \V.  270. 

-  Omaha  &  R.  V.  R.  Co.  v.  Chollette,  41  Neb.  587,  59  X.  W.  921 ;    Un- 
ion Pac.  R,  Co.  V.  I'orter,  38  Neb.  22U,  5G  N.  W.  80S. 

(45) 


§    28  CARRIERS   OF  PASSENGERS.  (Ch.    1 

of  a  proper  degree  of  care,  assuming  or  admit- 
ting a  certain  state  of  facts  to  exist.  As  to  the 
first  class,  the  question  is  always  for  the  jury- 
when  there  is  any  conflict  in  the  evidence.  As 
to  the  second  class,  by  the  great  weight  of  au- 
thority, the  question  is  also  for  the  jury  when- 
ever fair-minded  men  can  honestly  and  reason- 
ably differ  as  to  the  inference  to  be  drawn  from 
the  admitted  or  assumed  facts;  but,  when  there 
is  no  room  for  such  difference  of  opinion,  the 
question  is  one  of  law  for  the  court. 

The  proposition  that  the  jury  is  the  proper  tribunal 
to  decide  an  issue  of  fact  depending-  on  conflicting  evi- 
dence is  so  elementary  that  no  extended  discussion  as 
to  the  first  class  mentioned  in  the  black  letter  text  is 
necessary  at  this  time.^ 

On  the  question  whether  the  inference  of  negligence 
to  be  drawn  from  admitted  or  assumed  facts  is  for  the 
court  or  for  the  jury,  there  are  three  classes  of  v^ases, 
each  laying  down  contacting  and  irreconcilable  doc- 
trines. 

One  extreme  class  holds  that  when  the  facts  are  un- 
disputed, or  when  a  certain  state  of  facts  is  assumed  to 
exist,  the  inference  of  negligence  is  always  one  of  law 
for  the  court.  "When  the  facts  are  agreed  upon,  or 
otherwise  appear,  what  is  ordinary  care  is  a  question 
for  the  court.  When  the  facts  are  in  dispute,  the 
proper  course  for  the  judge  is  to  explain  what  would 
be  ordinary  care  under  certain  hypothesis  as  to  the 
facts,  and  have  the  jury  to  apply  the  law  to  the  facts 

§  2S.    1  See  post,  §§  503-508. 
(46) 


Ch.    1)  GENERAL    PHINCIPLES    GOVERNING    LIABILITY.  §    28 

as  tbev  find  them."  ^  This  view  seems  to  have  prevail- 
ed at  one  time  in  North  Carolina,'  and  perhaps  in  Vir- 
uinia.* 

Another  extreme  class  of  cases  holds  that  the  infer- 
ence of  jiegligence  from  admitted  or  assumed  facts  is  al- 
ways for  the  jury,  except  when  a  certain  course  of  con- 
duct is  expressly  declared  negligence  by  statute.    "The 

2  Wallaet  v.  Railroad  Co..  08  N.  C.  494,  4  S.  E.  503. 

3  Smith  V.  Railroad  Co.,  99  N.  C.  241,  5  S.  E.  S9;j;  Smith  v.  Railroad 
Co.,  64  X.  C.  2oo.  But  lately  the  supreme  court  of  North  Caro'.iua 
seems  to  have  receded  from  tliis  position  to  some  extent,  at  least. 

What  is  negligence  is  a  question  of  law  Mhen  the  facts  are  undis- 
puted; but  where  the  facts  are  controverted,  or  more  than  one  infer- 
ence can  be  drawn  from  them,  it  is  the  province  of  the  jury  to  pass 
upon  an  issue  involving  it.  Tillett  v.  Railroad  Co.,  US  N.  C.  1031,  24 
S.  E.  111. 

*  Dun  V.  Railroad  Co.,  78  Va.  645,  and  cases  cited.  Mr.  .Tustice 
Holmes,  in  his  Lectures  on  the  Common  Law  (pages  122,  123),  says: 
"When  a  case  arises  in  which  tlie  standard  of  conduct,  pure  and  simple, 
is  submitted  to  the  jury,  the  exi.lauatiou  is  plain.  It  is  that  the  court, 
not  entertaining  any  clear  views  of  public  poUcy  applicable  to  the  mat- 
ter, derives  the  rule  to  be  applied  from  daily  experience,  as  it  has  been 
agreed  that  the  great  body  of  tlio  law  of  tort  has  been  derived.  But 
the  coiu-t  further  feels  that  it  is  not  itself  possessed  of  sufficient  prac- 
tical experience  to  lay  the  rule  doAvn  intelligently.  It  conci>ives  that 
twelve  men  taken  fi-om  the  practical  part  of  the  community  can  aid 
its  judgment.  Therefore  it  aids  its  conscience  by  taking  the  opinion 
of  the  jury.  But  sui)posiug  a  state  of  facts  often  repeated  in  prac- 
tice, is  it  to  be  imagined  that  the  court  is  to  go  on  leaving  the  standard 
to  the  jury  forever V  Is  it  not  manifest,  on  the  contrary,  that  if  the 
jury  is.  on  the  wliole.  as  fair  a  tribunal  as  it  is  represented  to  be.  the 
lesson  which  can  be  got  from  that  sourct?  will  be  learned?  Either  the 
court  will  find  that  the  fair  teaching  of  experience  is  that  the  conduct 
complained  of  usually  is  or  is  not  blameworthy,  and  therefoi-e,  unless 
explained,  is  or  is  not  a  ground  of  liability;  or  it  will  find  the  jury 
v;icillating  to  and  fro,  and  will  see  the  necessity  of  making  up  its  mind 
itself."' 

(47) 


§    28  CARRIERS  OF  PASSENGERS.  (Ch.    1 

cases  involving  tliis  question  are  so  different  in  their 
facts,  so  various,  so  complicated,  and  arising  under  so 
many  different  circumstances,  that  it  would  be  utterly 
impossible  to  lay  down  an^^  general  principle  by  which 
every  special  case  could  be  measured  and  tested  as  to 
the  fact  of  negligence,  and  which  enables  the  judge  to 
say  to  the  jury,  as  matter  of  law,  such  and  such  facts 
showed  the  absence  or  presence  of  ordinary  care.  The 
general  rule  on  the  subject  seems  to  be  that  the  charge 
of  the  judge  must  simply  be  that  negligence  is  the  ab- 
sence of  ordinary  care,  and  the  jury  must  determine 
whether  the  facts  proved  before  them  amount  to  negli- 
gence. They  must  determine  what  facts  have  been 
proved,  and  then  say  by  their  verdict  whether  these 
facts  amount  to  the  absence  of  ordinary  care."  ^  This 
is  the  law  in  South  Carolina,^  in  Georgia,'  and  in 
Texas.*      In   arriving  at  this  conclusion,   the  courts 

8  Quinn  v.  Railroad  Co.,  29  S.  C.  381,  7  S.  E.  614. 

6  Quinn  v.  Railroad  Co.,  supra;  Bridger  v.  Railroad  Co.,  25  S.  C.  30; 
Tetrie  v.  Railroad  Co.,  29  S.  C.  303,  7  S.  E.  515,  and  cases  cited. 

"!  "This  court  has  repeatedly  held  for  many  years  that  negligence  is  a 
question  for  the  jury;  that  what  facts  make  a  case  of  negligence  is  a 
conclusion  which  the  jui-y  must  reach  without  aid  from  the  court;  and 
that  the  court  errs  if  the  judge,  in  charging  the  jury,  tells  them  what 
facts  make  negligence,  and  thus  reaches  a  conclusion  for  them,  and  in- 
structs them  that  they  must  adopt  and  enforce  his  conclusi  n  from  the 
facts,  so  concluding  tliem  ou  an  issue  the  law  gives  them  to  try.  and 
excluding  their  own  judgment  of  what  is  negligence  in  the  case  before 
them.  The  only  exception  to  this  long  line  of  decisions  on  this  point  is 
the  case  where  the  statute  law  makes  a  thing  negligence  in  express 
terms."  Central  R.  R.  v.  Thompson,  76  Ga.  770.  See,  also.  South- 
western R.  R.  V.  Singleton.  07  Ga.  300. 

8  "With  us  it  is  well  settled  tliat,  in  the  absence  of  statute  defining 
the  acts  which  constitute  negligence,  then  it  is  a  question  of  fact  for 
the  determination  of  the  jury."  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
(48) 


Ch.    1)  GENKRAL    PKINCIPLES    GOVERNING    LIABILITY.  §    25 

have  been  intiiienced  to  some  extent  by  constitutional 
and  statutory  provisions  prohibiting  the  judges  from 
charging  as  to  the  facts. 

BetAveen  these  two  extreme  views,  the  great  ma- 
jority of  the  courts  have  talcen  their  stand.  It  has 
been  held  by  the  house  of  lords  in  England,  b}-  the  su- 
j)reme  court  of  the  United  States,  and  by  most  of  the 
state  courts  of  last  resort,  that  the  test  to  determine 
whether  the  inference  of  negligence  is  for  the  court  or 
for  the  jury  is  whether  or  not  there  is  room  for  differ- 
ence of  opinion  between  reasonable  and  fair-minded 
men  as  to  what  inference  should  be  drawn  from  the 
admitted  or  assumed  facts.  If  there  is  no  room  for 
such  difference  of  opinion,  the  question  is  one  of  law 
for  the  court.  If  there  is  room  for  such  difference,  it 
is  one  of  fact  for  the  jury.  "Certain  facts  we  may  sup- 
pose to  be  clearly  established,  from  which  one  sensible, 
impartial  man  Avould  infer  that  proper  care  had  not 
been  used,  and  that  negligence  existed.  Another  man, 
equally  sensible  and  equally  im])artial,  would  infer 
that  proper  care  had  been  used,  and  that  there  was  no 
negligence.  It  is  this  class  of  cases,  and  those  akin 
to  it,  that  the  law  commits  to  the  decision  of  a  jury. 
Twelve  men  of  the  average  of  the  community,  compris- 
ing men  of  education  and  men  of  little  education,  men 
of  learning  and  men  whose  learning  consists  in  what 
they  haA^e  themselves  seen  and  heard, — the  merchant, 
the  mechanic,  the  farmer,  the  laborer, — these  sit  to- 
French,  59  Tex.  400.  See,  also,  Texas  &  r.  Ry.  Co.  v.  Murphy.  46  Tex. 
:r.<;;  international  &  G.  X.  Ky.  Co.  v.  Ormond.  VA  Tex.  485;  (lulf.  C.  & 
R.  I-\  Ry.  Co.  V.  Bafjlcy,  3  Tex.  Civ.  Api).  20T,  22  S.  W.  (iS;  S:ni  An 
touio  &  A.  P.  Ry.  Co.  v.  Lons,  4  Tex,  Civ.  Ayp.  4U7,  23  S.  W.  41M). 
V.  1  FET.C.^R.T'AS. —  I  (49) 


§    28  CARRIERS   OF  PASSENGERS.  {Ch.    1 

gether,  consult,  apply  their  separate  experience  of  the 
affairs  of  life  to  the  facts  proven,  and  draw  a  uuani- 
mons  conclusion.  This  average  judgment,  thus  given, 
it  is  the  great  effort  of  the  law  to  obtain.  It  is  assum- 
ed that  twelve  men  know  more  of  the  common  affairs 
of  life  than  does  one  man ;  that  they  can  draw  wiser 
and  safer  conclusions  from  admitted  facts  thus  occur- 
ring than  can  a  single  judge.  In  no  class  of  cases  can 
this  practical  experience  be  more  wisely  applied  than 
in  what  we  are  considering.''  ^ 

It  must  be  admitted,  however,  that  this  test  does  not 
bring  uniformity  into  the  decisions  as  to  the  province 
of  tlie  court  and  jury  in  inferring  negligence  when  ap- 
plied to  concrete  facts.  One  court  will  hold  that  on  a 
certain  class  of  facts  there  is  no  room  for  difference  of 
opinion  between  reasonable  and  fair-minded  men  as  to 
the  inference  to  be  drawn,  while  another  court  will 
hold  on  the  same  facts  that  there  is  room  for  such  dif- 
ference. It  does  seem,  however,  that  the  tendency  of 
recent  decisions,  if  not  to  enlarge  the  province  of  the 
jury,  is  to  arrest  the  process  of  curtailing  it,  and  that 
the  courts  are  not  disposed  to  enlarge  the  class  of 
cases  holding  a  certain  line  of  conduct  to  be  negli- 
gence per  se.^°      In  the  subjoined  note  are  cited  the 

»  Railroad  Co.  v.  Stout.  17  Wall.  657,  663,  664. 

10  "This  rule  must  be  applied  in  practice  with  caiition,  lest  the 
courts  usurp  the  funetious  of  the  .iury,  and  unwittiusiy  deprive  a 
party  of  his  eonstitutioual  i-ight  to  trial  by  jury."  Scheiber  v.  Rail- 
lo.itl  Co.,  ei.Miun.  499,  63  X.  W.  1034.  "We  are  constrained  to  hold 
tl'nt  the  provision  of  our  constitution  which  gives  parties  to  an  ac- 
tion at  law  the  right  to  trial  by  jury  embraces  even  partits  who  brini^ 
actions  at  law  against  railroad  corporations,  and  that  tlie  persistent 
effort  to  push  precedents  to  the  point  of  requiring  trial  judges  to  decide 

(50) 


Ch.    1}  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    28 

oases  laving-  down  tlie  general  principle/^  and  in  the 
following-  pages,  as  each  subject  is  taken  up,  an  at- 
tempt will  be  made  to  state  what  concrete  facts  have 
been  held  to  require  the  inference  of  negligence  to  be 
submitted  to  the  jury,  and  on  what  facts  the  courts 
have  decided  this  question  for  tliemselves. 

as  questions  of  law  the  issues  most  commonly  joined  in  cases  where 
recovery  for  personal  injuries  is  sought  should  not  be  encouraged.'' 
McCormlck,  J.,  in  New  Orleans  &  X.  E.  R.  Co.  v.  Thomas,  9  C.  C.  A. 
29.  60  Fed.  379. 

11  "The  judge  has  to  say  whether  any  facts  have  been  established 
by  evidence  from  which  negligence  may  be  reasonably  inferred;  the 
jurors  have  to  say  whether,  from  those  facts,  when  submitted  to 
thorn,  negligence  ought  to  be  inferred.  It  is,  in  my  opinion,  of  the 
greatest  imi'ortance  in  the  administration  of  justice  that  those  sep- 
arate functions  should  be  maintained,  and  should  be  maintained  dis- 
tinct. It  would  be  a  serious  inroad  on  the  province  of  the  jury,  if, 
in  a  case  where  there  are  facts  from  which  negligence  may  reason- 
ably be  inferred,  the  judge  were  to  withdraw  the  question  from  the 
jury  upon  the  ground  that,  in  his  opinion,  negligence  ought  not  to  bL^ 
inferred;  and  it  would,  on  the  other  hand,  place  in  the  hands  of  the 
jurors  a  power  which  might  be  exercised  in  the  most  arbitrary-  man- 
ner, if  they  were  at  liberty  to  hold  that  negligence  might  be  inferred 
from  any  state  of  facts  whatever."  Lord  Cairns,  in  Metropolitan 
Ry.  Co.  V.  Jackson.  3  App.  Cas.  193,  197.  See,  also,  Bridges  v.  Rail- 
way Co.,  L.  R.  7  H.  L.  213,  221,  233.  "A  scintilla  of  evidence,  or  a 
mere  surmise  that  there  may  have  been  negligence  on  the  part  of  the 
defendants,  clearly  would  not  justify  the  judge  in  leaving  the  case  to 
the  juiy.  There  must  be  evidence  upon  which  they  might  reason- 
ably and  properly  conclude  that  there  was  negligence."  Toomoy  v. 
Railway  Co.,  3  C.  B.  (N.  S.)  146,  150. 

'"The  question  of  negligence  is  one  of  law  for  the  court  only  where 
the  facts  are  such  that  all  reasonable  men  must  draw  the  same  con- 
clusion from  them;  or,  in  other  words,  a  case  should  not  be  with- 
drawn from  the  jury  unless  the  conclusion  follows,  as  matter  of  law, 
that  no  recovery  can  be  had  upon  any  view  which  can  be  properly 
taken  of  the  facts  which  the  eviilence  tends  to  establish."  Gardner 
T.  Railroad  Co.,  150  U.  S.  319.  14  Sup.  Ct.  140.     See,  also,  Richmond 


§    28  CARRIERS   OF  PASSENGERS.  (Cll.    1 

«fc  D.  R.  Co.  V.  Powers,  149  U.  S.  43,  13  Sup.  Ct.  748.  and  cases  cited; 
Hathaway  v.  Railroad  (C.  C.  Ga.)  29  Fed.  489.  "When  it  is  said 
that  a  given  act  does  or  does  not  constitute  negligence  in  law.  the 
statement  means  no  more  than  that,  in  thi?  judgment  of  all  reasonable 
men,— not  judges  alone,  for  it  concerns  a  fact,  and  not  a  question  of 
law,— it  would  be  esteemed  such,  ^yhen  it  can  be  attirmed  tliat  all 
reasonable  men  would  agree  as  to  the  qualitj'  of  an  act  in  respect  of 
its  being  either  negligent  or  prudent,  the  court  may  give  effect  to 
such  consensus  of  opinion,  and  direct  a  verdict  in  accordance  there- 
with. The  direction  is  given,  not  because  it  is  the  judge's  opinion 
alone,  but  because  the  judge  is  able  to  say  that  it  is  also  the  opinion 
that  all  reasonable  men  would  entertain  of  the  question.  If  there  is 
doubt  as  to  whether  all  reasonable  men  would  draw  the  same  con- 
clusion from  the  evidence,  then  the  question  must  be  submitted  to  the 
12  reasonable  men  appointed  by  the  constitution  to  determine  disput- 
ed or  doubtful  questions  of  fact."  Bronson  v.  Oakes,  22  C.  C.  A.  520, 
76  Fed.  734.  "When,  on  the  undisputed  evidence,  aided  by  legitimate 
inferences  which  may  be  drawn  from  it,  the  injury  to  plaintiff  was 
caused  by  his  own  negligence,  or  by  accident,  without  fault  on  the 
part  of  the  defendant,  the  court  is  not  required  to  submit  the  ques- 
tion of  negligence  to  the  jury,  but  may  give  the  general  affirmative 
charge  in  favor  of  the  defendant."  Smith  v.  Railway  Co.,  88  Ala. 
538,  7  South.  119.  Where  the  facts  are  admitted  or  proven  without 
contradiction,  the  court  will  determine  whetlier  or  not  they  estalilisli 
negligence,  or  show  contributorj^  negligence;  but.  where  the  coQclu- 
sion  is  open  to  debate,  it  is  one  for  the  jury,  under  proper  instruo 
tions  from  the  court.  Stephenson  v.  Southern  Pac.  Co.,  102  Cal.  143, 
34  Pac.  018,  and  36  Pac.  407.  See,  also,  Raub  v.  Railway  Co.,  103 
Cal.  473,  37  Pac.  374.  "Where  the  facts  are  disputed,  where  there 
is  any  reasonable  doubt  as  to  the  inference  to  be  drawn  from  them, 
or  when  the  measure  of  duty  is  ordinary  and  reasonable  care,  and 
the  degi'ee  varies  according  to  the  circumstances,  the  question  cannot, 
in  the  nature  of  the  case,  be  considered  by  the  court:  it  must  be  sub- 
mitted to  the  jury.  But  when  the  facts  and  inferences  are  undisput- 
ed, when  the  precise  measure  of  duty  is  determinate.— the  same  under 
all  circumstances,— where  a  rule  of  duty  in  a  given  exigency  may  be 
certified  and  accurately  defined,  the  question  is  for  the  court,  and  not 
for  the  jury."  Jackson  v.  Crilly,  16  Colo.  103,  26  Pac.  331,  and  cases 
cited.  "Where  the  facts  are  such  that  there  is  room  for  difference  of 
opinion  between  reasonable  men  as  to  whether  or  not  negligence 
(52) 


Ch.    1)  GENEUAL    PRINCIPLES    GOVERNING    LIABILITY.  §    28 

sbould  be  inferred,  the  riijlit  to  draw  the  inference  of  negrliijence  or 
no  negligence  therefrom  is  for  the  jury  as  one  of  fact,  and  not  for  the 
court  TO  be  inferred  as  one  of  law."     Cincinnati,  I..  St.  L.  &  C.  Ry, 
Co.   V.  Grames,  13G  Ind.  39,  3-i  N.   E.  714.  overruling  earlier  cases; 
Evansville  St.  Ry.  Co.  v.  Meadows,  13  Ind.  App.  155,  41  N.  E.  398; 
Hoehu  V.  Railroad  Co.,  152  111.  223,  38  N.  E.  549;    Dewald  v.  Rail- 
road Co.,  44  Kan.  586,  24  Pac.  1101.     Where  the  issue  before  the 
jury  is  upon  the  neghgence  of  the  iiarties,  and  the  testimony  upon  the 
points  in  controversy  is  conflicting  and  uncertain,  it  is  not  erroneous 
for  the  presiding  judge,  after  stating  to  the  jury,  in  language  to  which 
no  exception  is  taken,  the  degree  of  care  that  is  required  on  either 
side,  and  that  plaintiff's  right  to  recover  depends  upon  proof  to  their 
sati.sfaotion  that  the  injuries  were  received  by  the  fault  of  the  defend- 
ants, without  fault  on  the  part  of  the  passenger  contributing  to  the 
result,  to  decline,  upon  request,  to  determine,  as  matter  of  law,  whether 
a  certain  state  of  facts,  claimed  on  one  side  to  exist,  and  denied  on  the 
other,  would  or  would  not  constitute  negligence.     Hobbs  v.  Railroad 
Co.,  66  Me.  572.     Tlie  case  must  be  a  very  clear  one  to  justify  the 
court  in  taking  upon  itself  the  responsibility  of  deciding  the  question 
of  negligence.     It  must  present  some  decisive  act,  in  regard  to  the  ef- 
fect and  character  of  which  no  room  is  left  for  ordinary  minds  to  dif- 
fer.   Baltimore  &  O.  R.  Co.  v.  Kane,  69  Md.  11,  25,  13  Atl.  387;   Cum- 
berland Val.  R.  Co.  V.  Maugans,  61  Md.  53.      "The  question  of  ordinary 
care  is  in  most  cases,  even  wliere  the  facts  are  undisputed,  a  quest:o-i 
of  fact,  which  it  is  peculiarly  the  province  of  the  jury  to  settle.     Rut 
if,  as  matter  of  common  knowledge  and  experience,  the  courts  can  see 
that,  upon  all  the  undisputed  facts,  the  plaintiff  was  not  in  the  exer- 
cise of  ordinary  care,  and  that  the  injury  he  received  was  in  part  at- 
tributable to  his  want  of  it,  the  jury  may  properly  be  told,  as  mat- 
ter of  law,  that  he  cannot  recover."     Creamer  v.  Railway  Co..   156 
Mass.  320,  31  X.  E.  391,  and  cases  cited.     See,  also,  Gavett  v.  Railroad 
Co.,  16  Gray, -501;    Fox  v.  Sackett,  10  Allen,  535.     '"If  all  the  circum- 
stances of  the  case,  wlien  the  facts  are  undisputed,  are  such  that  ordi- 
narily prudent  men  would  be  hable  to  differ  in  their  views  as  to  the 
negligence  imiiutotl,  then  such  negligence  should  not  be  determined 
by  the  court,  but  the  question  left  to  the  jury,  under  proper  instruc- 
tions."    Ecliff  v.  Railway  Co.,  64  Mich.  196,  31  N.  W.  180.     "Where 
the  facts  as  to  the  negligence  of  a  party  are  undisputed  or  conclusively 
proved,  and  there  is  no  reasonable  basis  for  drawing  different  con- 
clusions froni  them,  the  question  is  one  of  law  for  the  court.     It  is 

(53) 


§    28  CARRIERS  OF  PASSENGERS.  (Ch.    1 

not   sufficient  that  the  facts  are  admitted,   for  the  decisive   test  is 
wliether  or  not  fair-minded  men  could  honestly  and  reasonably  dif- 
fer as  to  the  inferences  to  be  drawn  from  the  admitted  facts."    Scheib- 
er  V.  Railway  Co.,  61  Minn.  499,  63  N.  W.  1034.     See,  also,  Oviatt  v. 
Railroad  Co.,  43  Minn.  300,  4-5  N.  W.  436;    Abbott  v.  Railway  Co..  30 
Minn.  482,  16  N.  W.  263.     "Negligence  is  a  mixed  question  of  law  and 
fact.     The  court  declares  what  is  negligence,  and  the  jury  finds  the 
facts,  in  the  particular  case,  and  reports  to  the  court  what  such  facts 
show  on  the  question  of  negligence,  viewed  in  the  light  of  what  the 
court  has  declared  negligence  to  be."    McMurtry  v.  Railway  Co.,  67 
Miss.  601,  7  South.  401.     "Negligence  and  contributory  negligence  are 
never  questions  of  law,  unless  the  facts  are  such  that  all  reasonable 
men  must  draw  the  same  inference  from  tliem."     Eichhorn  v.  Rail- 
way Co.,  130  Mo.  575,  32  S.  W.  993.     See,  also.  Weber  v.  Railway 
Co.,  100  Mo.  194,  12  S.  W.  804,  and  13  S.  W.  587;    Florida  v.  Car  Co., 
37  Mo.  App.  598;  Taylor  v.  Railway  Co.,  26  Mo.  App.  336.     "The 
rule  in  this  state  is  well  established  tliat  questions  of  negligence  and 
contributory  negligence  are  for  the  jury  where  the  facts  are  such  that 
reasonable  minds  may  honestly  draw  different  conclusions  therefrom. 
It  is  only  where  opinions  cannot  reasonably  differ  as  to  the  inference 
to  be  drawn  from  the  facts  that  the  court  is  justified  in  withdrawing 
the  case  from  the  jury."     Omaha  St.  R.  Co.  v.  Loehneisen,  40  Neb. 
37.  58  N.  W.  535;   Omaha  St.  Ry.  Co.  v.  Martin,  48  Neb.  65,  66  N.  W. 
1007.     "The  wisdom   of  the  time-honored  nile  of  the   common   law 
which  refers  questions  of  fact  to  jurors,  and  questions  of  law  to  the 
judge,  is  not  more  conspicuous  in  any  class  of  civil  cases  than  in  those 
which  involve  questions   of   negligence.     Cases   of  that   nature   fre- 
quently come  before  the  courts,  in  which  men  of  equal  intelligence 
and  judgment  differ  in  their  conclusions  simply  because  they  differ 
in  experience  and  habits,  in  temperament,  or  mental  organization.     A 
course  of  conduct  which  seems  sufficiently   careful  to  a  self-relianT 
man,  who  is  accustomed  to  act  promptly,  may  appear  feckless  to  one 
who  is  unusually  circumspect  or  hesitating.    That  average  judgment 
which  is  the  result  of  the  deliberations  of  twelve  men  of  ordinai-y 
sense  and  experience  is  recognized  by  our  jury  system  as  a  jnster 
standard  than  the  judgment  of  one  man  of  equal  experience  and  sense 
in  the  determination  of  questions  of  fact,  and  is  especially  valuable  in 
the  decision  of  questions  of  negligence.     On  the  trial  of  an  issue  of 
that  nature,  if  there  is  any  doubt,  however  slight,  either  as  to  what 
facts  are  established  by  the  testimony,  or  as  to  the  conclusion  in  re- 
(54) 


Ch.    1)  GENERAL    PRINCIPLES    GOVERNING    LIABILITY.  §    28 

spect  to  the  fact  of  negligence  that  may  be  les:ithnatel.v  drawn  from 
the  circumstances  proved  by  the  average  of  men  of  common  sense, 
ordinary  experience,  and  fair  intentions,  the  case  shonid  not  be  taken 
from  tlio  jury.  It  is  only  when  the  case  is  entirely  clear  upon  the 
testimony,  where  there  is  no  room  for  rational  doubt,  either  as  to  the 
circumstances  proved,  or  as  to  the  conclusion  of  fact  which  ni;iy  be 
properly  drawn  from  tliem.  that  a  judge  is  jnstitied  in  deciding  a 
question  of  negligence  as  matter  of  law."'  AA'illis  v.  Railroad  Co..  34 
X.  Y.  G70,  U79.  See,  also.  Keller  v.  Railroad  Co.,  2  Abb.  Dec.  4S0, 
artirming  17  How.  Prac.  102;  Bernhard  v.  Railroad  Co.,  1  Abb.  Dec. 
131,  affirming  32  Barb.  165;  Filer  v.  Railroad  Co.,  49  N.  Y.  47:  Wolf- 
kiel  V.  Railroad  Co.,  38  N.  Y.  49.  The  earlier  rule  in  New  York  was 
that  when  the  facts  are  uncontroverted,  the  question  of  negligence  is 
one  of  law  for  the  court.  Gonzales  v.  Railroad  Co.,  38  N.  Y.  440. 
"Xeghgence  is  the  absence  of  care  according  to  the  circumstances,  and 
is  always  a  question  for  the  jury  when  there  is  a  reasonable  doubt  as 
to  the  facts,  or  as  to  the  inferences  to  be  drawn  from  them.  When 
the  measure  of  duty  is  ordinary  and  reasonable  care,  and  the  dog-ee 
of  care  varies  according  to  the  circumstances,  the  question  of  negli- 
gence is  necessarily  for  the  jury."  Pennsylvania  R.  Co.  v.  Peters,  IIG 
Pa.  St.  206,  9  Atl.  317,  and  cases  cited;  Lehigh  Val.  R.  Co.  v.  GreineB, 
113  Pa.  St.  600,  6  Atl.  246,  and  cases  cited.  See,  also,  Arnold  v.  Rail- 
road Co.,  115  Pa.  St.  135,  8  Atl.  213;  iNIcCully  v.  Clarke,  40  Pa.  St. 
399.  '"Though,  generally,  the  question  of  negligence  is  a  question  of 
fact  to  be  determined  by  the  jury,  yet  when  there  is  no  controversy 
about  the  facts,  or  when  it  clearly  appears  from  thein  what  course  a 
person  of  ordinarj'  prudence  would  pursue,  it  is  a  question  for  the 
court.  So,  too,  when  the  standard  of  duty  is  fixed,  or  when  the  neg- 
ligence is  clearly  defined  and  palpable."  Chaffee  v.  Railroad  Co.,  17 
R.  I.  658,  24  Atl.  141.  See,  also,  Boss  v.  Railroad  Co..  15  R.  I.  149.  1 
Atl.  9.  "In  cases  where  the  common  experience  of  mankind  and  the 
conmion  consensus  of  prudent  persons  have  recognized  that  to  do  or 
omit  to  do  certain  acts  is  prolific  of  danger,  we  may  call  the  doing  or 
omission  of  them  legal  negligence."  Carrico  v.  Railroad  Co.,  35  W. 
Va.  .'589,  14  S.  E.  12.  "When  the  facts  and  circumstances,  though  un- 
disputed, are  ambiguous,  and  of  such  a  nature  that  reasonable  men, 
unaffected  by  bias  or  prejudice,  may  disagree  as  to  the  conclusions 
to  be  drawn  from  them,  then  the  case  should  be  submitted  to  the 
jiuy.  But  when  sucli  facts  and  circumstances  are  not  ambiguous, 
and  there  is  room  for  two  honest  and  apparently  reasonable  conclu- 

(55) 


§    28  CARRIERS   OF  PASSENGERS.  (Ch.    1 

sions,  ihen  the  court  may  take  the  case  from  the  jury.  The  same 
rules  are  applicable  to  questions  of  contributory  negligence."  Hart 
V.  Railroad  Co.,  8G  Wis.  483.  57  N.  W.  91,  and  cases  cited.  See.  also, 
ratten  V.  Railroad  Co..  32  Wis.  524.  "When  tlie  law  prescribes  what 
shall  constitute  negligeuce.orwhen  tli?  act  r  lie  1  on  to  show  n  "gligence 
is  isolated,  then  negligence  becomes  a  question  of  law.  But  when 
the  standard  of  negligence  is  not  prescribed,  and  there  is  a  combina- 
tion of  facts  and  circumstances  relied  upon  to  show  negligence,  the 
question  becomes  one  of  law  only  when  those  facts  and  circumstan- 
ces are  so  decisive  one  way  or  the  other  as  to  leave  no  reasonable  doubt 
about  it,— no  room  for  opposing  inferences."  Worthiugton  v.  Railroad 
Co..  64  Vt.  107,  23  Atl.  5UU. 

In  comlusion,  it  should  be  stated  that  the  failure  to  observe  a  statu- 
tory requirement,  resulting  in  injury  to  plaintiff,  is  generally  held  to 
be  negligence  as  matter  of  law.  Thus  canyiug  more  passengers  on  a 
coach  than  permitted  by  statute,  by  reason  of  which  the  axletree 
broke,  was  held  conclusive  evidence  of  negligence  in  Israel  v.  Clark.  4 
Esp.  259;  and  in  a  very  recent  case  the  failure  of  the  employes  on  a 
street  car  to  bring  it  to  a  stop,  and  go  ahead  of  it  on  a  crossing  with 
a  steam  railway  to  see  if  the  way  was  clear,  was  held  negligence  as 
matter  of  law,  since  a  statute  required  these  things  to  be  done.  Cin- 
cinnati St.  Ry.  Co.  V.  Murray  (Ohio)  42  N.  E.  590.  See,  however, 
Blamlres  v.  Railway  Co.,  L.  R.  8  Ex(;h.  283. 
(56) 


Cll.   2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  §    29 

CHAPTER  II. 

DUTY  OF  CARE  AS  TO  MEANS  OF  TRANSPORTATION. 

§  29.  Duty  as  to  Roadbed. 

30.  Same — Negligence  of  Employes  and  Independent  Gouti'actors. 

31.  Same— Act  of  God. 

32.  Same— Guarding  against  Act  of  (Jod. 

33.  Same^Acts  of  Publie  Ent'niy. 

34.  Same — Inspection  and  Repair. 
3o.  Same— Obstructions. 

3t>.  Same— Cattle  on  Track. 

37.  Same— Street-Car  Tracks. 

oS.  Duty  as  to  Vehic-les. 

S9.  Same— Latent  Defects. 

40.  Same — Liability  for  Negligence  of  Manufacturer. 

41.  Same — Inspection. 

42.  Same — Guarding  Car  Windows. 

43.  Same— Car  Platforms. 

44.  Same— Motive  Power  for  Street  Cars. 

45.  Same— Statutory  Requirements. 

§  29.     DUTY  AS  TO  ROADBED. 

A  railroad  company  is  bound  to  exercise  the  high- 
est degree  of  practicable  care,  not  only  in  the 
construction  of  its  roadbed,  but  in  its  inspection, 
its  repair,  and  in  keeping  it  free  from  obstruc- 
tions. But  it  is  not  an  insurer,  and  is  therefore 
not  liable  for  defects  caused  by  the  act  of  God 
or  of  the  public  enemy. 

Since  railroad  corporations,  nndor  extraordinary 
grants  of  franchises,  build,  control,  and  generally 
have  the  exclusive  use  of  their  roadbeds  and  tracks, 

(57) 


§    29  CARRIERS   OP  PASSENGERS.  (Cll.    2 

the  courts  have  exacted  from  them  this  degree  of  care 
M-ith  respect  to  their  passengers,  whose  personal  safe- 
ty depends  on  a  rigid  enforcement  of  the  rule.^  But, 
though  railroad  companies  must  exercise  this  high  de- 
gree of  care,  they  are  not  bound  absolutely  to  provide 
a  roadway  free  from  defect,  irrespective  of  the  ques- 
tion of  negligence." 

The  duty  in  respect  to  the  roadbed  extends  to  every 
portion  of  it,  including  the  fills  or  embankments,  the 
I  ridges,  the  cuts,  the  ties,  and  the  rails.'  It  has  even 
been  held  that  in  constructing  and  maintaining  its 
Iridges,  a  railroad  company  is  required  to  take  into 
account  the  fact  that  accidents,  such  as  the  derail- 
ment of  a  train,  may  occur  in  the  operation  of  its  road, 
and  must  construct  its  bridges  with  reference  thereto, 
and  it  must  exercise  a  high  degree  of  care  in  this  re- 

§  29.  1  International  &  G.  N.  R.  Co.  v.  Halloren,  53  Tex.  46;  Mc- 
Elroy  y.  Railroad  Corp.,  4  Cusli.  400;  Virginia  Cent.  R.  Co.  v.  Sau- 
cer, l.j  Grat.  230.  It  is  said  in  these  cases  that  a  carrier  of  passengers 
by  stage  coacli  is  not  responsible  for  the  condition  of  the  highway,  since 
it  is  not  under  his  control  or  supervision. 

2  McPaddeu  v.  Railroad  Co.,  44  N.  Y.  478.  "Great  care  is  required 
from  railroad  companies  in  the  construction  of  their  roads,  hut  abso- 
lute liability  for  defects  has  never  been  charged  on  them."  Libby  v. 
Railroad  Co.,  85  Me.  34.  26  Atl.  943. 

3  In  Gieeson  v.  Railroad  Co.,  140  U.  S.  435.  11  Sup.  Ct.  8-59.  Justice 
Lamar  said:  "If  it  be  the  duty  of  the  company,  as  it  unquestionably  is, 
in  the  erection  of  fills  and  the  necessaiy  bridges,  to  so  construct  them 
that  they  shall  be  reasonably  safe,  and  to  maintain  them  in  a  reasou- 
ably  safe  condition,  no  reason  can  be  assigned  why  the  same  duty 
should  not  exist  in  regard  to  cuts.  Just  as  surely  as  the  laws  of 
gravitj'  will  cause  a  heavy  train  to  fall  through  a  defective  or  rotten 
bridge  to  the  desti'uction  of  life,  just  so  surely  will  these  same  laws 
cause  landslides,  and  consequent  dangerous  obstiiictions  to  the  track 
Itself,  from  ill-constructed  railway  cuts." 

(oS) 


Ch.    2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  5v    30 

spect.*  Moreover,  the  track  must  be  in  a  reasonably 
safe  condition,  not  only  for  passenger  cars,  but  for  all 
other  yehieles  which  the  company  may  use  for  the 
transportation  of  passengers  over  it.^  But,  as  has  al 
ready  been  stated,  a  railroad  company  is  not  bound  to 
guard  against  unforeseen  accidents.* 

g  30.     SAME— NEGLIGENCE    OF    EMPLOYES  AND  IN- 
DEPENDENT CONTRACTORS. 

A  railroad  company  is  answerable  to  its  passengers 
for  negligence  in  the  construction  of  its  roadbed,  as 
well  when  the  negligence  is  that  of  its  employes  as 
when  it  is  that  of  independent  contractors,  their  sub- 
contractors, and  servants. 

That  a  railroad  company  has  employed  competent 
engineers  to  supervise  the  construction  of  its  roadbed 
and  bridges  clearly  does  not  exonerate  it  from  the  con- 
sequences of  the  negligence  of  the  engineers  in  the 
construction,  since  a  master  is  always  liable  for  the 
negligence  of  his  servant  while  acting  within  the 
scope  of  his  employment.^ 

4  Pershing  v.  Railroad  Co.,  71  Iowa,  561,  571,  32  N.  W.  488. 

5  Pool  V.  Railway  Co.,  56  Wis.  227,  233.  14  X.  AV.  46;  Id..  53  Wis. 
057.  11  N.  W.  15  (hand  car). 

c  Ante,  §  12.  A  loaded  wagon  broke  down  on  a  bridge,  so  as  to  ob- 
struct a  street-car  track,  and  a  car  was  nece.ssarily  lifted  to  the  par- 
allel ti-ack,  and  run  along  it  for  a  short  distance,  in  the  opposite  diroc- 
tidii  from  which  cars  were  usually  moved  on  that  track.  Held,  that 
the  failure  to  have  the  frogs  so  placed  as  to  prevent  the  car  from 
being  thrown  from  the  track  was  pot  negligence  as  matter  of  law,  such 
frogs  having  been  put  in  to  prevent  cars  going  in  the  proper  direction 
from  being  thrown  from  the  track.  White  v.  Railroad  Co.,  61  Wis. 
536,  21  N.  W.  524. 

§  30.    1  Employment  of  competent  engineer  to  construct  bridge  is  no 

(59) 


§    30  CARRIERS   OF  PASSENGERS.  (Ch.    2 

As  a  general  proposition,  however,  one  who  has 
contracted  with  a  fit  and  competent  person,  exercisino- 
an  independent  employment,  to  do  work  not  in  itself 
dangerous  to  others  or  unlawful,  according  to  the  con- 
tractor's own  method,  and  without  his  being  subject 
to  control,  except  as  to  the  results  of  his  work,  is  not 
answerable  for  the  wrongs  of  such  contractor,  his  sub- 
contractors or  servants,  committed  in  the  prosecution 
of  the  work.^  But  this  principle  cannot  be  applied  so 
as  to  relieve  carriers  from  any  of  their  duties  to  pas- 
sengers. One  of  the  very  plainest  duties  imposed  up- 
on a  railroad  company  carrying  passengers  for  pay  is 
that  it  shall  keep  its  track  in  good  and  safe  condition, 
free  from  obstructions  endangering  those  passengers. 
For  the  public  to  yield  orwaive  the  performance  of  this 
duty  would  be  to  waive  that  which  is  of  the  highest 
importance  to  personal  safety  or  life  itself.  The  law 
is  necessarily  rigid  as  to  this.  Passengers  are  en- 
titled, by  the  clearest  principles,  to  look  in  this  re- 
spect to  the  carrier  who  has  engaged  to  carry  them, 
and  cannot  be  told  to  follow  some  one,  a  stranger  to 
them,  and  often  irresponsible.  The  company  cannot 
devest  itself  of  or  shift  this  obligation.^ 

defense  to  an  action  by  a  passenger  injured  by  tliefallingof  the  bridge. 
Grote  V.  Railway  Co.  (1S4S)  2  Exch.  251.  Where  a  passenger  is  in- 
jured by  tbe  waslaing  away  of  an  embankment  of  a  railroad  because  of 
insufficient  drainage,  the  company  will  not  be  relieved  from  liability  l>y 
the  fact  that  the  road  was  constructed  under  the  supervision  of  a  com- 
petent engineer,  and  that  the  drainage,  at  tlie  point  of  the  accident, 
was  provided  for  in  a  manner  directed  and  approved  by  him.  Phila- 
delpliia  &  R.  R.  Co.  v.  Anderson,  94  Pa.  St.  351. 

2  Carrico  v.  Railway  Co.,  39  W.  Va.  8(3,  19  S.  E.  571.    And  see  1  Jagg. 
Torts,  231. 

3  Carrico  v.  Railway  Co..  39  W.  Va.  8G,  19  S.  E.  571  (company  held 

(60) 


Ch.   2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  §    31 


§  31.     SAME— ACT  OT  GOD. 

Railroad  companies  must  so  constnut  tlieir  road- 
beds as  to  be  capable  of  resisting  all  violence  of  weath- 
er wliicb  may  be  expected,  though  rarely,  to  occur  in 
the  climate  where  they  are  located;^  but  such  com- 
panies are  not  bound  to  provide  against  such  extraor- 

liable  for  act  of  independent  contractor  in  negligently  piling  rock  so 
close  to  the  track  as  to  scrape  against  passenger  car);  Virginia  Cent. 
R.  Co.  V.  Sanger,  15  Grat.  230  (liable  for  act  of  independent  contractor 
in  piling  stones  so  near  track  tliat  one  of  tlieni  rolled  under  wheels  of 
■passing  train,  causing  its  derailment).  Where  a  man  causes  a  building 
to  be  erected  for  viewing  a  public  exhibition,  and  admits  persons  on 
payment  of  money,  the  contract  between  him  and  the  persons  admitted 
is  analogous  to  the  contract  between  a  carrier  and  his  passengers;  and 
there  is  implied  in  such  a  contract  a  warranty,  not  only  of  due  care  on 
the  part  of  himself  and  his  servants,  but  also  of  due  care  on  the  part  of 
any  independent  contractor  who  may  have  been  employed  by  him  to 
construct  the  means  of  conveyance  and  of  support.  Francis  v.  Cock- 
rell.  L.  R.  5  Q.  B.  184,  501,  23  Law  T.  (N.  S.)  466.  Proprietors  of 
structures  intended  for  public  use,  such  as  fair  associations,  theaters, 
etc.,  are  held  only  to  the  duty  of  exercising  reasonable  care  m  con- 
structing or  repairing  them,  keeping  in  view  the  uses  to  which  they  arc 
to  be  devoted.  But  this  degree  of  care  is  charged  upon  them  as  a  per- 
sonal duty  to  be  discharged  by  them.  The  burden  of  seeing  and  know- 
ing that  the  building  has  been  constructed  with  reasonable  slcill  and 
care  and  prudence  is  cast  upon  them,  and  they  are  held  answerable  for 
independent  contractors  employed  by  tliem,  whose  failure  to  use  due  o; 
ordinary  care  is  to  be  deemed  a  failure  of  the  proprietors.  'I'ueker  v. 
Agiicultural  Board,  52  111.  App.  316.  The  proprietor  of  a  liiU  to  which 
the  public  is  invited  is  bound  to  use  ordinary  cai-e  and  diligence  to  put 
and  keep  the  hall  in  a  reasonably  safe  condition  for  persons  attending 
in  pursuance  of  sucli  invitation;  and  if  he  neglects  his  duty  in  this  re- 
spect, so  that  the  hall  is  in  fact  unsafe,  his  knowledge  or  ignorance  of 
tlic  defect  is  immaterial.  Currier  v.  Music  Hall  Ass'n,  135  Mass.  411. 
See,  also,  post,  §  344. 
§  31.     1  (Jreat  Western  Ry.  Co.  V.  Braid,  1  Moore,  P.  C.  (N.  S.)  lul. 

(01) 


§    31  CARRIERS   OF  PASSENGERS.  (Cll.    2 

dinary  and  unprecedented  storms,  floods,  or  other 
inevitable  casualties  caused  by  the  hidden  forces  of 
nature,  unknown  to  common  experience,  and  not  rea- 
sonably to  be  anticipated  by  that  degree  of  engineer- 
ing skill  and  experience  required  in  the  prudent  con- 
struction of  such  road.  In  such  case  the  injury  can- 
not be  held  to  be  attributable  to  any  fault  or  negli- 
gence of  the  company;  it  results  from  inevitable  ac- 
cident— vis  major — the  act  of  God.-  Thus  a  railroad 
company  is  not  in  fault  in  respect  to  the  construction 
of  a  culvert  over  a  brook,  which  has  stood  for  more 
than  40  years,  and  which  never  in  all  that  time  had 
failed  to  discharge  all  the  water  flowing  into  it,  but 
which  was  washed  out  by  an  unprecedented  local 
cloud-burst  of  about  two  hours'  duration,  emptying 
volumes  of  water  upon  the  track.^  And  where  a  rail- 
way embankment  through  a  marshy  country  has  with- 
stood floods  for  five  years,  the  company  is  not  liable 
for  the  death  of  a  passenger  caused  by  the  giving  way 
of  the  embankment  by  reason  of  a  flood  resulting  from 
a  storm  "such  as  had  never  before  occurred."  *     Even 

2  Libby  v.  Railroad  Co.,  85  Me.  34,  42,  26  Atl.  &43. 

3  Id. 

4  Withers  v.  Railway  Co.,  27  Law  J.  Exoh.  417;  s.  c.  at  nisi  prius,  1 
Fost.  &  F.  16.5.  A  railroad  company  constructed  its  tracli  in  a  sljillful 
manner,  with  a  culvert  of  sufficient  capacity  to  carry  oft"  all  ordinary 
surface  water.  The  embanlvment  was  undermined  by  an  extraor- 
dinarily heavy  local  rain,  which  had  not  injured  the  surface  of  the 
track.  Held,  that  the  company  was  not  liable  for  injuries  in  a  wreck 
caused  by  the  giving  way  of  the  embankment,  where  anotiier  train 
had  passed  over  the  track  two  hours  before  the  accident,  and  where 
the  track  had  been  examined  by  the  sectionmen  only  an  hour  before 
the  accident,  and  been  found  in  an  apparently  good  condition.  In- 
ternational &  G.  X.  R.  Co.  V.  Halloren,  53  Tex.  46. 

(G2) 


Ch.    2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  §    31 

a  statute  reqiiirino-  railroad  companies  to  construct 
ditches  and  drains  along-  the  sides  of  their  roadbeds 
does  not  require  them  to  provide  against  floods  which 
are  extraordinary  and  nuprecedented/  Neither  is  a 
railroad  company  liable  for  the  vis  major  of  extreme 
cold,  by  which  a  sound  rail  is  broken,  without  any 
want  of  care  and  skill  on  its  part  in  the  selection,  test- 
ing, laying,  and  use  of  such  rail." 

Upon  the  other  hand,  the  company  must  provide  its 
track  with  sufficient  drains  to  carry  off  the  waters  of  a 
storm  which,  though  of  unusual  violence,  is  of  such  a 
.  character  as  may  reasonably  have  been  anticipated." 
So  the  prevalence  of  continuous  rain  and  snow  in  the 
winter,  for  a  considerable  time,  is  not  an  unprecedent- 
ed or  unusual  event  in  Texas,  against  the  effects  of 
which  a  railroad  company  cannot  guard  by  proper 
care  and  skill. ^  And  where  the  immediate  cause  of 
the  washing  away  of  a  railroad  embankment  is  the 
lack  of  proper  drainage,  the  fact  that  a  rain  storm  of 
unprecedented  violence  concurred  in  producing  the 
accident  will  not  relieve  the  company  from  liability.'-' 
Kor  is  a  landslide  in  a  railway  cut,  caused  by  an  or- 
dinary fall  of  rain,  an  act  of  God.^" 

6  EUtt  V.  Ral\v;iy  Co.,  76  Mo.  518. 

6  McPadden  v.  Railroad  Co.,  44  N.  Y.  478,  reversing  47  Barb.  247; 
Canadian  Pac.  Ky.  Co.  v.  Clialifoux,  22  Can.  Sup.  Ct.  721.  lu  the  last- 
cited  case,  this  was  held  to  be  the  rule  both  at  the  common  law  and 
under  the  Civil  Code  of  the  Province  of  Quebec. 

7  Great  Western  Ry.  Co.  v.  Braid,  1  Moore.  P.  C.  (N.  S.)  101,  affirm- 
ing 10  r.  C.  C.  P.  l.",7. 

8  ^lissouri  Pac.  Ry.  Co.  v.  Mitchell,  72  Tex.  171,  10  S.  \V.  411; 
Missouri  Pac.  Ry.  Co.  v.  .Johnson,  72  Tex.  95.  10  S.  W.  325. 

0  Philadelphia  &  R.  R.  Co.  v.  Arr^^rson.  94  Pa.  St.  3.")1. 
10  Glee-son  v.  Railroad  Co..  140  U.  S.  4:J5.  11  Sup.  Ct.  859,  reversing 

(63) 


§    32  CARRIERS   OF   PASSENGERS.  (Cll.    2 


§  32.     SAME— GUARDING  AGAINST  ACT  OF  GOD. 

The  carrier  owes  to  his  passenger  the  duty  of  exer- 
cising the  highest  degree  of  practical  care  to  ascertain 
whether  or  not  the  track  has  been  rendered  unsafe  by 
an  act  of  God,  and  to  avoid  its  effect.  ''Under  cir- 
cumstances of  more  than  ordinary  peril,  as  in  the  case 
of  violent  storms,  the  company  should  inspect  its  lines 
with  more  than  ordinary  promptitude,  particularly 
those  portions  which  are  the  most  liable  to  injury  by 
storm  or  flood.  The  greater  the  peril,  the  greater  the 
vigilance  demanded."  ^  ''The  duty  of  the  company  is 
to  employ  the  highest  degree  of  practicable  care  to 
guard  against  accidents,  and  where  its  agents  or  of- 
ficers have  knowledge  that  a  great  storm  or  a  great 

5  Mackey  (D.  C.)  356.  In  this  last  case  it  was  said:  "Extraordiuaiy 
floods,  storms  of  unusual  violence,  sudden  tempests,  severe  frosts,  great 
droughts,  lightnings,  earthquakes,  sudden  deaths,  and  illnesses  have 
.  been  held  to  be  'acts  of  God' ;  but  we  know  of  no  instance  in  which  a 
rain  of  not  unusual  violence,  and  the  probable  result  thereof  in  soften- 
ing the  superficial  earth,  have  been  so  considered."  To  construct  a 
railroad  embankment  of  earth  in  a  place  which  has  indications  of  hav- 
ing at  one  time  been  a  natural  watercourse  is  negligence,  rendering  the 
company  liable  for  the  death  of  a  passenger  in  a  railroad  disaster 
caused  by  the  washing  away  of  the  embankment  by  a  flood  in  a  vio- 
lent, but  not  unprecedented,  storm.  Kansas  Pac.  Ry.  Co.  v.  Lundin, 
3  Colo.  1)4;   Kansas  Pac.  Ry.  Co.  v.  INIiller,  2  Colo.  442. 

§  32.  1  Libby  v.  Railroad  Co..  85  :Me.  45.  26  Atl.  943.  In  this  case 
it  Avas  held  that  where  a  section  crew  knew  that  a  severe  rain  storm 
hail  occurred,  and  that  an  extensive  watershed  emptied  into  a  cul- 
vert about  Uyo  miles  from  where  they  then  were,  and  that  a  passen- 
ger ti-ain  was  due  shortly  after  the  rain  ceased,  the  jury  might  find 
that  their  remaining  in  shelter  for  an  hour  and  a  half  was  negli- 
gence which  rendered  the  company  liable  for  injuries  to  a  passenger 
caused  by  a  washout  at  the  culvert. 
(64) 


Ch.    2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  §    32 

flood  has  probably  made  its  track  or  bridges  unsafe,  it 
must,  where  there  is  reasonable  time  and  opportunity, 
take  measures  to  protect  its  passengers  from  injury."  ^ 
Though  a  locomotive  engineer  has  no  knowledge  of 
the  extraordinary  violence  of  a  rain  storm  which  se- 
cretly undermined  the  track,  and  caused  the  derail- 
ment of  his  train,  yet  the  fact  that  he  observed  that 
the  water  was  within  eight  inches  of  the  ties— over 
three  feet  higher  than  he  had  ever  seen  it  before— is, 
of  itself,  notice  to  him  that  there  had  been  an  unusual 
and  extraordinary  storm  in  that  vicinity;   and,  in  the 
absence  of  information  on  the  part  of  the  engineer  as 
to  how  long  the  water  had  been  at  that  height,  or  as 
to  whether  it  had  been  higher,  it  is  his  duty  to  exer- 
cise the  utmost  circumspection  before  attempting  to 
go  over  the  embankment,  and  the  utmost  care  and 
skill  in  the  management  of  his  train  in  going  over  it.^ 
But  the  dangerous  condition  of  a  railroad  track  from 
a  heavy  rain  does  not  render  it  negligence  for  a  rail- 
road company  to  run  a  train  over  the  track,  unless  the 

2  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Thompson,  107  Ind.  442,  8  N.  E.  18, 
and  9  N.  E.  357. 

3  Ellet  V.  Railway  Co.,  76  Mo.  518.  The  only  case  holding  a  con- 
trary principle  is  that  of  Gillespie  v.  Railway  Co.,  6  Mo.  App.  .554. 
This  ease  holds  that  a  carrier  is  bound  only  to  the  use  of  ordinary  care 
to  guard  against  an  act  of  God.  "So  far  as  regards  tlie  perils  for 
whicli  the  carrier  is  responsible,  he  is  bound  to  tlie  liighest  degree  of 
practicable  care,  and  liable  for  slight  neglect.  But  where  the  material 
issue  conies  in  of  act  of  God,  or  vis  major,  we  have  the  operation  of  n 
peril  for  which  llie  carrier  is  not  responsible;  and  this,  as  in  a  case 
where  the  point  is  as  to  the  passenger's  contributory  negligence,  raises 
the  question  whether  the  carrier,  notAvithstanding  tlie  operation  of 
perils  which  he  does  not  assume,  could,  by  the  exercise  of  ordinary 
care,  have  avoided  the  catastroiihe." 

V.   1  KRT.CAR.P./^S. — 5  (65) 


§    32  CARRIERS   OF  PASSENGERS.  (Cll.    2 

coDipany  or  its  employes  knew,  or  by  proper  care 
would  have  known,  the  condition.*  Nor  is  an  elevat- 
ed railroad  chargeable  Avitli  negligence  in  failing  to 
suspend  the  entire  operation  of  its  road  at  the  begin- 
ning of  a  blizzard  of  unprecedented  violence, Avhere  the 
weather  forecast  had  been  favorable,  and  it  had  stop- 
ped snowing  for  some  hours  before  the  blizzard  be- 
gan. Hence  the  failure  to  so  stop  oiieratious  does  not 
render  the  company  liable  for  a  collision  between  a 
snow-bound  train  and  another  approaching  from  the 
rear.^'  Nor  is  a  carrier  operating  a  railroad  over 
mountains  negligent  in  running  a  train  during  a  se- 
vere snowstorm,  and  it  is  not  liable  to  a  passenger  in- 
jured bv  the  train's  derailment  bv  a  snowslide:  such 
an  accident  having  never  before  occurred  at  this  point 
and  there  having  been  no  reason  to  anticipate  one 


5 
6 


4  International  &  G.  N.  R.  Co.  v.  Halloren,  53  Tex.  4G.  On  a  dark, 
rainy  night,  a  passenger  train  rnnning  on  a  ti'aek  laid  along  the  moun- 
tain side  was  frequently  stopped  at  exposed  places.  At  length  the 
rain  ceased,  and  the  train  reached  ,a  portion  of  the  road  regarded  as 
perfectly  safe,  the  track  on  which  was  laid  on  an  eartli  fill,  supplied 
Avitli  a  culvert  which  had  been  adequate  to  carry  off  the  water  for  35 
years.  Owing  to  a  waterspout  at  this  place,  the  embankment  had 
been  washed  away,  and  a  pond  had  formed  which  floated  the  ties  and 
rails  unbroken.  The  ti-ain  was  running  so  slowly  that  the  rear  cars 
did  not  get  on  the  fill,  but  the  locomotive  and  front  passenger  coaches 
plunged  into  the  pond,  and  many  passengers  were  killed  and  injured. 
Held,  tliat  the  company  was  not  liable,  no  negligence  being  shown. 
Norfolk  &  W.  R.  Co.  v.  INIarsliall's  Adm'r,  90  Va.  83(3.  20  S.  E.  S23. 

r>  Connelly  v.  Railroad  Co.,  142  N.  Y.  377,  37  N.  E.  402,  reversing  68 
Hun.  4.50,  23  X.  Y.  Supp.  88. 

6  Denver  &  R.  G.  R.  Co.  v.  Pilgrim  (Colo.  App.)  47  Pac.  657. 
(CG) 


Ch.   2)  DUTY    AS    TO    MEANS   OF   TRANSPORTATION.  §    3 


§  33.     SAME— ACTS  OF  PUBLIC   ENEMY. 

A  railroad  company  is  not  liable  for  defects  in  its 
roadbed  caused  by  the  act  of  the  public  enemy.  Hap- 
pily, there  has  not  been  very  frequent  occasion  to  ap- 
ply this  principle.     At  the  outbreak  of  the  Civil  War, 
however,  a  railroad  bridge  over  the  Platte  river  was 
burned  by  armed  rebels  on  a  sudden  and  hostile  in- 
cursion a  few  hours  before  the  arrival  of  a  passenger 
train,  and  the  sectioumen  were  overawed  and  driven 
off,  so  that  no  notice  of  the  burning  of  the  bridge  had 
come  to  the  trainmen.      It  was  held  that  the  company 
was  not  chargeable  with  negligence  in  failing  to  maiu- 
taiu  a  proper  roadbed.      It  was  further  held  that  the 
failure  to  stop  the  train  before  going  on  the  bridge 
was  not  negligence  which  would  render  the  company 
liable  for  injuries  to  a  passenger  caused  by  the  train's 
plunging  into  the  chasm,  especially  where  there  was 
danger  of  the  train's  being  fired  into  and  captured.^ 
So,  in  a  Georgia  case,  it  was  held  that,  though  a  car 
was  derailed,  and  a  passenger  killed,  by  reason  of  de- 
fects in  the  roadbed,  yet  a  verdict  exonerating  the  com- 
pany from  negligence  was  warranted  by  evidence  that 
the  accident  occurred  during  the  Civil  War,  when  the 
ports  of  the  South  were  under  rigid  blockade,  and 
sup])lies  of  iron  were  not  to  be  had.^ 

§  :;3.    1  Sawyer  v.  Railroad  Co.,  37  Mo.  liU, 
2  Wright  V.  Bauking  Co.,  34  Ga.  330. 

(G7) 


§    34  CARRIERS   OF  PASSENGERS.  (Ch.    2 

§  34.     SAME— INSPECTION  AND  REPAIR. 

A  railroad  company  is  not  absolutely  bound  to  know 
whether  its  tracks  are  in  fit  condition  for  safe  passage, 
but  it  must  do  all  that  human  care,  foresight,  and  vigi- 
lance can  do  to  ascertain  their  condition.^  The  duty 
of  inspection  does  not  end  when  the  materials  are  put 
in  place,  but  continues  during  their  use;  for  the  com- 
pany is  bound  to  test  them  from  time  to  time,  to  ascer- 
tain whether  they  are  being  impaired  by  use  or  ex- 
posure to  the  elements.^  It  is  not  enough  that  a  track 
is  in  "apparently"  good  condition.  If  there  are  de- 
fects rendering  it  unsafe,  which  by  the  exercise  of  care 
and  skill  might  have  been  discovered,  it  is  the  carrier's 
duty  to  discover  them,  and  thus  avoid  danger  to  its 
passengers.^    ' 

§  34.    1  St.  Louis  C.  R.  Co.  v.  Moore,  14  111.  App.  510. 

2  Louisville,  N.  A.  &  C.  R.  Co.  v.  Snyder,  117  Ind.  435,  20  N.  E.  284. 

s  Cliicago,  P.  &  St.  L.  Ry.  Co.  v.  Lewis,  145  111.  67,  33  N.  E.  960. 
It  is  the  duty  of  a  railroad  company  to  have  a  good,  substantial,  and 
safe  roadbed  for  the  use  of  its  passenger  trains,  and  default  in  that 
duty,  where  the  defect  is  patent  to  common  observation,  is  negligence. 
Florida  Ry.  &  Nav.  Co.  v.  Webster,  25  Fla.  394,  5  South.  714.  To  per- 
mit rotten  cross-ties  to  remain  on  a  railroad  track  is  negligence,  whie-h 
renders  the  company  liable  for  injuries  to  a  passenger  caused  by  the 
giving  way  of  the  ties  under  the  weight  of  the  locomotive.  Ruther- 
ford V.  Railroad  Co.,  41  La.  Ann.  793,  6  South.  644.  It  is  evidence  of 
negligence,  in  the  conduct  of  the  cariying,  that  the  train  was  run  over 
a  rail  known  to  have  been  defective  and  fractured.  Pym  v.  Railway 
Co.,  2  Fost.  &  F.  619.  A  railroad  company  is  guilty  of  gross  negli- 
gence in  permitting  the  rails  to  become  badly  worn,  having  their  ends 
so  loose  that  they  pass  up  and  down  with  each  passing  car,  such  rails 
varying  in  length  from  9  to  13  feet,  some  of  them  not  meeting  at  the 
joints  by  2^2  inches,  the  spaces  being  tihed  in  witli  wooden  plugs,  and 
(G8) 


Cli.    2)  DLTV    AS    TO    MEANS    OF    TRANSPORTATION.  §    o5 


§  35.     SAME— OBSTRUCTIONS. 

It  is  the  duty  of  a  railroad  company  to  exercise 
proper  care  and  diligence,  not  only  to  free  the  track  it- 
self from  obstructions,  but  also  to  guard  against  the 
interference  of  objects  near  the  track  with  passenger 
trains.  Thus  a  railway  company,  as  to  its  passen- 
gers, is  bound  to  see  that  the  cars  which  it  uses  on 
side  tracks  are  secured  in  place,  so  that  they  will  not 
come  upon  the  track  to  overthrow  any  train  that  may 
come  along. "^      And  the  fact  that  a  freight  car  is  mov- 

some  of  the  ties  being  brolien  iu  tlie  middle.  Toledo,  W.  &  W.  Ry.  Co. 
V.  Apperson,  49  III.  480.  Repairing  a  railroad  track  by  cutting  oin  a 
portion  of  a  broken  rail,  and  inserting  a  sound  piece,  instead  of  sub- 
stituting an  entirely  new  rail,  is  negligence.  Peoria,  P.  &  J.  R.  Co.  v. 
Reynolds,  88  111.  418.  Repairs  of  a  railroad  track  were  attempted  to 
be  made  without  interfering  with  the  passage  of  trains.  Th;'  tune  for 
the  passage  of  the  different  trains  was  well  uuderstood,  aud  to  insure 
safety  it  was  onlj^  necessary  that  the  employes  of  the  company  shouUl 
have  an  accurate  timepiece,  to  enable  them  so  to  conduct  the  work 
that  the  track  should  be  in  order  on  the  arrival  of  the  next  train: 
Held,  that  it  was  the  duty  of  the  company  to  see  to  it  that  the  men  em- 
ployed in  labor  of  that  kind  were  furnished  with  a  proper  timepiece, 
and  that  where  the  company  paid  no  attention  to  that  subject,  but  left 
the  foreman  to  procure  aud  to  attend  to  the  regulation  of  his  own 
watch,  it  was  a  question  for  the  jury  whether  or  not  the  company  was 
guilty  of  negligence.  Matteson  v.  Railroad  Co.,  62  Barb.  (N.  Y.)  304. 
§  3o.  1  Union  Pac.  Ry.  Co.  v.  Harris,  158  U.  S.  326,  15  Sup.  Ct.  843. 
Failure  to  set  brakes  on  freight  cars  on  a  side  track  is  negligence, 
which  renders  the  company  liable  for  iujuries  to  a  passengei',  whose 
train  was  struck  by  one  of  the  freight  cars  which  had  moved  down 
the  side  track  so  near  the  main  track  as  to  render  a  collision  inevitable. 
Id.  In  Spicer  v.  Railway  Co.,  29  Wis.  580,  it  was  held  to  be  negligence 
for  the  engineer  of  a  freight  train  to  uncouple  cars  standing  on  a  side 
ti'ack,  on  a  down  grade,  without  blocking  the  wheels,  or  disconnecting 
the  switch  from  the  main  track;    aud  the  company  was  held  liable  for 

(CD) 


§    35  CARRIERS   OF  PASSENGERS.  (Ch.    2 

ed  by  the  force  of  the  wind  from  a  side  track  to  the 
main  track  is  not  alone  sufficient  to  relieve  the  carrier 
from  a  charge  of  negligence,  in  an  action  by  a  pas- 
senger injured  in  a  collision  with  the  car.  It  is  the 
duly  of  the  company  to  secure  cars  on  a  side  track  so 
that  no  wind  which  may  reasonably  be  anticipated 
will  move  them.  Defendant's  evidence  that  the  car 
was  secured  by  setting  the  brakes  is  not  sufficient  to 
take  the  case  from  the  jury,  where  plaintiff's  evidence 
shows  that,  if  the  brakes  had  been  properly  set,  such  a 
wind  as  there  was  prior  to  the  collision  would  not 
have  moved  the  car.-  So,  it  is  negligence  in  a  rail- 
road company  to  allow  coal  bins  so  close  to  its  track 
that  passengers  on  an  open  excusion  car  cannot  safeh^ 
stand,  while  passing  them,  on  the  running  board  that 
stretches  along  the  side  of  such  a  car,  and  that  takes 
the  i>lace  of  the  aisle  in  the  ordinary  passenger  car.^ 
So,  also,  a  street-car  company,  using  electricity  as  a 
motive  power,  is  bound  to  foresee  the  possible  danger 
to  which  passengeis  on  the  footboards  of  its  cars  ma}' 
be  exposed  by  a  slight  turn  of  the  body  sidewise,  or 
by  a  slight  inclination  of  it  backward,  in  consequence 

injuries  to  a  passenger  sustained  in  a  collision  between  a  passenger 
train  and  tlie  freight  cars,  which  had  run  onto  the  main  track  of  their 
own  momentum. 

2  Webster  v.  Railroad  Co.,  115  N.  Y.  112,  21  N.  E.  72.3;  Id.,  40  Hun 
(N.  Y.)  IGl.  But  placing  cars  on  a  side  track  is  not  negligence  which 
will  render  a  railroad  company  liable  for  injuries  to  a  passenger,  whose 
train  ran  off  the  track  at  a  switch,  and  into  the  cars  standing  on  the 
side  track.     Grant  v.  Railroad  Co.,  108  N.  C.  462,  13  S.  E.  209. 

3  Dickinson  v.  Railway  Co.,  53  Mich.  43.  18  N.  W.  553.  Code  Tenn. 
1884,  §  1307,  requires  every  railroad  company  to  cut  down  on  its  lands 
trees  more  than  six  inches  in  diameter  which  might  reach  the  roadbed 
if  they  fell. 

(70) 


Cll.   2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  §    35 

of  the  proximity  of  its  track  to  its  trolley  poles;  and 
a  jury  may  find  it  negli.uent  in  phuing-  sncli  a  pole 
within  24  inches  of  the  rail,  and  within  10  or  12  inches 
of  the  footboard  of  a  movinsr  car.*  But  it  is  not  neu- 
liiience  for  a  street-car  company  to  continue  to  run  its 
cars  on  its  track  after  the  erection,  by  another  com- 
pany, of  elevated  railroad  pillars  in  the  street  near  its 
track;  and  where,  on  account  of  such  pillars,  it  has 
purchased  open  summer  cars  six  inches  narrower  than 
the  ordinary  cars,  it  is  not  liable  for  an  injury  to  a  pas- 
senger who  was  struck  by  one  of  these  pillars  while 
walking  along  the  running  board  at  the  side  of  the 
car/ 

The  same  principle  applies  to  overhead  structures, 
so  far,  at  least,  as  passengers  are  concerned.  "Rail- 
way companies  are  under  an  obligation  to  all  persons 
Avho  have  a  right  to  be  on  top  of  their  trains,  in  the 

4  Elliott  T.  Railway  Co.,  18  R.  I.  707,  28  Atl.  338,  and  31  All.  {\[)4. 
Where  a  street  railroad,  improving  its  tracks,  places  a  temporary  track 
so  near  the  curb  of  the  street  as  to  place  its  passengers,  in  getting  on 
and  off  the  cars,  and  while  upon  them,  in  danger  of  being  struck  by  a 
telegraph  pole,  it  is  a  fair  question  for  the  jury  whether  the  company 
is  or  is  not  guilty  of  negligence.  North  Chicago  St.  R.  Co.  v.  Williams, 
140  111.  275,  283,  29  N.  E.  672,  40  111.  App.  590.  A  street-railroad  com- 
pany, which  places  its  track  in  close  proximitj^  to  a  derrick,  must  use 
all  reasonable  care  to  avoid  exposing  passengers  to  danger,  and  es- 
pecially is  tliis  so  in  view  of  the  fact  that  passengers  are  allowed  to 
stand  on  the  side  steps  of  the  car.  Seymour  v.  Railway  Co.,  114  Mo. 
266,  21  S.  AV.  739. 

5  Murphy  v.  Railroad  Co.  (Super.  Ct.  X.  Y.)  26  N.  Y.  Sui)p.  783; 
Vromau  v.  Railroad  Co.,  7  Misc.  Rep.  2:14.  745,  27  X.  Y.  Supp.  257,  112S. 
The  mere  piling  of  dirt  or  clay  on  or  near  u  street-railway  track,  for 
u.se  in  ballasting  the  track,  wliere  it  has  been  undermined  by  a  wasli- 
our.  is  not  negligence  on  tin-  part  of  the  company.  Noble  v.  Railway 
Co.,  98  Mich.  249,  57  N.  W.  126. 

(71) 


§    35  CARRIERS  OF  PASSENGERS.  (Ch.    2 

discharge  of  any  duty,  to  so  construct  overhead 
bridges  that  they  will  not  cause  any  peril  that  can 
easily,  and  without  auv  great  outlay,  be  avoided;  and, 
if  any  dangerous  overhanging  structures  are  for  any 
reason  maintained,  it  is  the  company's  duty,  in  the  ex- 
ercise of  ordinary  care,  to  give  warning,  either  ver- 
bally or  by  suspended  whiplashes,  to  persons  thus  ex- 
posed." ^  But  it  has  been  held  that  a  railroad  company 
is  not  under  any  obligation  to  construct  its  roadbed  so 
as  to  render  it  safe  for  passengers  to  ride  on  top  of  a 
caboose,  in  violation  of  its  rules,  and  one  so  riding  as- 
sumes the  risk  of  being  struck  by  a  projecting  water 
spout  from  a  water  tank  near  the  track."  So,  when  a 
railroad  company  has  nothing  to  do  with  overhead 
structures  erected  by  a  municipal  corporation  in  mak- 

6  So  held  incase  of  a  stock  drover,  who  was  struck  by  a  bridge  while 
rightfully  walking  ou  top  of  a  cattle  train  from  the  engine  to  the  ca- 
boose. Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Carpenter,  5  C.  C.  A.  551.  56 
Fed.  451,  and  cases  cited.  It  is  a  question  of  fact  for  the  jury  to  de- 
termine whether  or  not  a  railroad  company  is  negligent  in  constructing 
snowsheds  over  the  track  so  low  that  a  cattle  drover,  rightfully  walk- 
ing on  top  of  a  refrigerator  car,  and  ignorant  of  the  whereabouts  of 
the  shed,  is  struck  on  the  head,  and  thrown  from  the  car.  Saunders 
V.  Railroad  Co.  (Utah)  44  Pac.  932.  A  different  rule  has  been  laid 
down  by  some  courts  with  respect  to  railroad  employes.  Baylor  v. 
Railroad  Co.,  40  N.  J.  Law,  23;  Baltimore  &  O.  R.  Co.  v.  Sti-icker,  51 
Md.  47;  Pittsburgh  &  C.  R.  Co.  v.  Sentmeyer,  92  Pa.  St.  276;  Gibson 
V.  Railway  Co.,  63  N.  Y.  449.  Where  a  building  contractor  negligently 
suspends  the  guy  rope  of  a  derrick  too  low  for  a  street  car  to  pass  un- 
der it,  and  the  driver  of  the  car  negligently  drives  against  the  rope, 
so  as  to  cause  the  derrick  to  fall  upon  and  kill  a  passenger  on  the  car, 
both  the  contractor  and  the  i-ailway  corporation  may  be  held  liable  in 
an  action  by  the  widow  of  the  passenger.  Hunt  v.  Railroad  Co.,  14 
Mo.  App.  160. 

7  St.  Louis  S.  W.  Ry.  Co.  v.  Rice,  9  Tex.  Civ.  App.  509.  29  S.  W.  525. 

(72) 


Ch.    2)  DL'TY    AS    TO    MEANS    OF    TUANSPORTATION.  §    35 

ing'  a  public  improvement,  it  is  not  the  duty  of  the  rail- 
^vay  directors  to  assume  that  such  works  will  be  neg- 
ligently conducted  by  those  who  have  contracted  for 
their  execution,  and  to  take  precautions  against  pos- 
sible negligence  on  the  part  of  persons  who  are  not  in 
th^ir  employment,  nor  under  their  control.^ 

The  locomotive  engineer  and  all  other  train  hands 
are,  of  course,  bound  to  exercise  a  high  degree  of  care 
to  avoid  collisions  with  obstructions  on  or  near  the 
track.  Thus  an  engineer  of  a  passenger  train  is 
guilty  of  negligence  in  driving  his  train,  in  broad  day- 
light, at  the  rate  of  10  or  15  miles  per  hour,  against 
sticks  of  wood  lying  directly  across  the  track,  visible 
for  a  distance  of  a  quarter  of  a  mile  before  reaching 
them,  though  he  thinks  that  he  can  knock  them  out  of 
the  way.^ 

8  Daniel  v.  Railway  Co.,  L.  R.  5  H.  L.  45,  affirming  L.  R.  3  C.  P.  591, 
reversing  Id.  216.  In  this  case  the  facts  were:  The  city  of  London  was 
authorized  by  statute  to  execute  certain  worlis  over  the  line  of  the 
Metropolitan  Railway  Company.  These  works  consisted  partly  in  plac- 
ing heavy  iron  girders  upon  the  walls  running  along  the  line  of  rail- 
way, but  therailway  company  had  no  control  over  these  works,  and  they 
were  executed  by  contractors  engaged  by  the  city.  Several  girders  had 
been  safely  put  in  place  by  manual  labor,  but  on  this  occasion  the  con- 
tractor brought  into  use  for  one  of  the  girders  a  monkey  steam  engine, 
Avhich  moved  the  girder  with  a  jerk,  and  so  caused  it  to  overbalance 
and  fall.  It  fell  on  a  passing  train,  and  injured  a  passenger  therein. 
Held,  that  this  was  not  a  mischief,  the  occurrence  of  which  the  rail- 
way company  was  bound  to  anticipate,  and  against  which  it  was  bound 
to  take  precautions,  and  that  therefore  its  failure  to  employ  signalmen 
to  warn  the  conti-actors  of  approaching  trains,  for  the  purpose  of  stop- 
ping work  until  they  had  passed,  was  not  negligence;  that  duty  being 
Incumbent  on  the  contractors. 

«  Willis  V.  Railroad  Co.,  34  N.  Y.  670,  affirming  32  Barb.  308.  A 
railroad  company  is  liable  for  any  casualty,  resulting  in  injuiy  lo  a 

(7;i) 


§    35  CARRIERS   OF   PASSENGERS.  (Ch.    2, 

But  a  statute  requiring  the  alarm  whistle  to  be 
sounded  Avhen  any  person,  animal,  or  other  obstruc- 
tion appears  on  the  track  applies  only  to  actions  for 
injury  to  persons  or  property  on  the  track,  and  not  to 
the  case  of  a  passenger  injured  in  a  collision  between 
the  train  and  an  inanimate  obstruction  on  the  track/** 
Where  a  wreck  obstructs  a  track,  and  necessitates  a 
transfer  of  passengers  from  one  train  to  another  in  the 
nighttime,  compelling  them  to  walk  900  feet,  and  to 
cross  a  ditch  over  which  planks  have  been  placed,  the 
failure  to  place  a  light  at  the  crossing,  or  to  give  any 
warning  of  the  ditch,  or  to  take  some  means  to  guard 
passengers  from  the  extra  hazard  to  which  they  are 
exposed  in  crossing,  warrants  the  jury  in  finding  neg- 
ligence, and  in  holding  the  company  liable  for  injuries 
to  a  passenger  who  fell  into  the  ditch  in  crossing.^^ 

passenger,  which  may  occur  fronl  running  with  greater  speed  than  is 
prudent,  or  on  account  of  collisions  with  obstructions  on  the  tracli, 
which  tlie  engineer  or  conductor  saw,  or  might  have  seen,  or  which 
he  miglit  have  avoided  by  the  most  sliillful  and  prompt  use  of  all  the 
means  in  his  power.  Nashville  &  C.  R.  Co.  v.  Messiuo,  1  Sneed  (Tenn.) 
220.  The  question  of  negligence  in  tlie  management  of  a  street  car 
on  approaching,  at  its  usual  rate  of  speed,  a  sti'ucture  within  an  iucli 
of  the  track,  is  for  the  jury.  Dahlberg  v.  Railway  Co.,  32  Minn.  4ti4. 
21  N.  W.  54.5. 

10  Louisville  &  N.  R.  Co.  v.  McKenna,  7  Lea  (Tenn.)  313. 

11  Mcksburg  &  M.  R.  Co.  v.  Howe,  52  Miss.  202.  The  progress  of  a 
passenger  train  was  interrupted  by  the  wreck  of  a  freight  train,  con- 
sisting principally  of  oil  cars,  the  oil  in  which  was  burning.  The  pas- 
sengers were  transferred  to  the  other  side  of  the  wreck,  200  feet  from 
the  burning  cars,  to  await  another  train.  Held  that,  since  the  burning 
cars  were  obvious,  and  the  danger  of  explosion  of  oil  apparent,  the 
railroad  company  was  not  bound  to  restrain  the  passengers  by  physical 
force  from  approaching  so  near  the  burning  cars  as  to  become  endan- 
gered by  an  explosion,  should  one  occur.     There  was  no  pitfall  or  trap. 

(74) 


C'll.    2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  §    30 

§  36.     SAME— CATTLE  ON  TRACK. 

Though,  as  between  the  owner  of  live  stock  and  a 
railroad  eompanj',  the  company  is  not  bound  to  fence 
its  track  at  common  law,  jet  as  to  its  passengers  the 
company  is  bound  to  exercise  the  highest  human  care 
and  skill  to  keep  animals  off  its  track;  and  where  a 
passenger  has  been  injured  in  a  collision  between  his 
train  and  animals  on  the  track,  the  failure  to  fence  is 
sufficient  evidence  of  negligence  to  take  the  case  to  the 
jur}'/  This  principle  is  peculiarly  applicable  in  states 
where  it  is  the  general  custom  to  permit  cattle  to  run 
at  large.  If  a  fence  will  render  the  track  safe  from 
intrusion  of  cattle,  and  no  other  precautions  will  suf- 
fice, the  company's  obligation  to  its  passengers  de- 
mands the  more  effective  remedy."  The  duty  to  fence 
their  ti'acks  is  now  very  generall}^  imposed  on  rail- 
road companies  by  statute.  Many  decisions  affirm 
that  these  statutes  are  valid,  because  thev  are  enacted 
under  the  police  power,  and  are  intended  to  protect 
persons  traveling  on  the  railroads  of  the  country.     If 

nor  any  invitation  to  passengers  to  leave  the  place  designated  by  the 
conii  any  to  await  the  arrival  of  the  other  train,  and  approach  to  within 
about  80  feet  of  the  burning  cars.  Conroy  v.  Railway  Co.  (Wis.)  70 
N.  W.  480.  A  railroail  coniitany  is  guiltj'  of  negligence  in  requiring 
its  passengers  to  walk  over  a  bridge  in  the  nighttime,  without  anj' 
guards  on  either  side  of  it,  and  obstructed  by  a  large  piece  of  timber, 
and  without  any  lights  to  guide  them.  Jamison  v.  Railroad  Co.,  55 
Cal.  592. 

i  36.  1  Sullivan  v.  Railroad  Co.  US^S)  :J0  Ta.  St.  li.U:  T^aelca wanna 
&  B.  R.  Co.  V.  Chenewith,  52  Pa.  St.  382;  Buxton  v.  Railway  Co.  (1868) 
L.  R.  3  Q.  B.  553. 

2  Fordyce  v.  Jackson,  56  Ark.  594,  20  S.  W.  528,  597,  and  cases  cited. 

(75) 


§    30  CARRIERS  OF  PASSENGERS.  (Ch.    2 

the  duty  to  fence  is  negligently  violated,  and  the  vio- 
lation of  duty  is  the  proximate  cause  of  injury  to  a  pas- 
senger, his  right  of  action  is  clear  and  complete.^ 

At  intersections  with  public  highways,  it  is  the  duty 
of  the  company  towards  its  passengers  either  to  con- 
struct cattle  guards  or  station  watchmen  there.* 

Employes  in  charge  of  trains  must  exercise  faith- 
ful watchfulness  to  prevent  accidents  by  collision  with 
cattle,  and  the  company  must  keep  a  clear  right  of 
way  to  afford  them  the  facility  of  performing  that 
duty/  It  is  negligence  for  the  engineer  of  a  passen- 
ger train  to  run  at  full  speed  over  any  part  of  the  road 
known  to  be  frequented  by  cattle,  unless  that  part  of 
the  road  is  properly  guarded  from  invasion.® 

3  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Hendricks,  128  Iiid.  462,  28  N. 

E.  58. 

4  Brown  v.  Railroad  Co..  3-1  N.  Y.  404.  Though  a  cow  gets  on  a  rail- 
road track  within  the  limits  of  a  village,  where  the  statute  does  not  re- 
quire the  company  to  maintain  a  fence,  yet  the  company  is  negligent 
in  failing  to  maintain  a  suttieient  cattle  guard  at  the  village  limits; 
and  a  passenger  who  is  injured  by  the  derailment  of  the  train  caused 
by  striking  the  cow  may  recover  from  tlie  company.     Atchison,  T.  &  S. 

F.  R.  Co,  V.  Elder,  149  111.  173,  36  N.  E.  505;    Id.,  50  111.  App.  276. 

5  Fordyce  v.  Jackson,  56  Ark.  594,  20  S.  W,  528,  597. 

8  Brown  v.  Railroad  Co.,  34  N.  Y.  404.  Where  cattle  are  habitually 
attracted  to  the  tracks  near  a  flag  station  by  corn  liable  to  be  scattered 
on  the  ground,  and  cows  have  been  run  over  at  that  station,  a  proper 
consideration  for  the  safety  of  passengers  very  clearly  imposes  on  the 
company  the  duty,  either  of  checking  the  speed  of  a  train  intending  to 
pass  the  station  without  stopping,  so  as  to  remove  all  danger  of  acci- 
dents, or  of  stationing  a  watchman  there  at  the  appproacli  and  pas- 
sage of  such  a  train,  for  the  purpose  of  keeping  the  track  clear.  If 
there  is  no  watchman,  it  is  inexcusable  negligence  to  run  a  train  past 
the  station  with  more  than  ordinary  velocity.  Chicago,  R.  I.  &  P.  R. 
Co.  V.  McAra,  52  111.  296.  In  an  action  by  a  passenger  for  injuries  sus- 
tained in  the  derailment  of  his  car  in  a  collision  with  a  bull  in  the 
(76) 


Ch.    2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  §    o7 

§  37.     SAME— STREET-CAR   TRACKS. 

The  rules  fjoverning:  the  construction  and  main- 
tenance of  the  roadbeds  of  ordinary  steam  railroads 
are  in  the  main  applicable  to  street  railways.  Thus  it 
is  negligence  in  a  street  railway  to  construct  its  tracks 
so  close  together  on  a  curve  that  cars  going  in  opposite 
directions  come  into  collision.^  Likewise  proper  care 
must  be  exercised  by  the  company  to  keep  the  track  in 

nighttime,  the  presumption  of  neghgence  is  completely  rebutted  by  un- 
contradicted evidence  tliat,  owing  to  a  curve  in  the  track,  the  engineer 
could  not  have  seen  the  bull  in  time  to  have  stopped  the  train,  so  as  to 
have  avoided  the  accident.  Brunswick  &  A.  R.  Co.  v.  Gale,  50  Ga. 
322.  It  would  seem  that  the  court  overlooked  the  company's  duty  to 
keep  the  track  clear. 

§  37.  1  Germantown  P.  Ry.  Co.  v.  Brophy,  105  Pa.  St.  38.  Where 
a  passenger  standing  on  the  runuiug  board  of  a  crowded  street  car  is 
struck  by  another  car  on  a  parallel  track,  the  fact  that  the  two  tracks 
were  closer  together  at  the  place  of  accident  than  at  other  portions  of 
the  line,  and  that  by  the  sinking  of  one  of  the  rails  the  cars  at  that 
point  pitched  towards  each  other,  is  sutticient  to  warrant  a  jury  in  find- 
ing negligence.  Gray  v.  Railroad  Co.,  61  Hun.  212. 15  N.  Y.  Supp.  927.  A 
street-railroad  company  constructed  its  parallel  tracks  so  wnde  apart 
that  people  frequently  stood  between  them  while  cars  were  passing 
each  other,  and  open  cars  had  been  run  on  tlie  road  for  20  years,  and 
thousands  of  i)assengers  had  stood  on  the  running  boards  of  such  cars 
witliout  injury  from  cars  on  the  other  track.  Held,  that  the  company 
was  not  chargeable  with  negligence  in  failing  to  have  more  space  be- 
tween the  tracks,  and  that  it  was  not  Uable  for  injuries  to  a  passenger 
standing  on  the  nmning  board  in  such  an  extraordinary  position  aS  to 
be  struck  by  a  car  on  the  parallel  track.  Craighead  v.  R.illroad  Co., 
12."{  X.  Y.  391,  25  N.  E.  .387,  reversing  (City  Ct.  Brook.)  5  X.  Y.  Supp. 
4'.'A.  lUit  where  a  street-railway  company  constructs  its  parallel  traek.s 
so  clo.se  together  that  cars  pa.ssing  on  a  curve  almost  touch  each  other, 
it  is  negligence  on  the  part  of  the  company  to  take  no  precautions  to 
prevent  cars  fi-om  passing  each  other  on  the  curve.  Suiinucrs  v. 
Railroad  Co.,  34  La.  Ann.  139. 

(77) 


§    37  CARRIERS  OF   PASSENGERS.  (Ch.    2 

repair.-  But  a  street  railroad,  by  laying  its  tracks 
and  rnnning  its  cars  across  a  bridge  bnilt  by  the  state 
over  a  canal,  and  forming  a  continnation  of  the  street, 
does  not  thereby  make  the  bridge  an  appliance  of  its 
own,  within  the  meaning  of  the  rnle  which  exacts  ex- 
treme care  and  caution  from  carriers  in  relation  to  the 
condition  of  appliances  employed  by  them.  While  it 
might  be  negligence  to  drive  over  a  bridge  manifestly 
unsafe,  or  not  strong  enough  to  bear  the  proposed 
weight,  the  company  is  not  liable  for  injuries  to  a  pas 
senger  caused  by  a  latent  defect  in  the  bridge,  even  if 
discoverable  in  the  process  of  manufacture 


'S'-J 


2  In  an  action  by  a  passenger  thrown  out  of  an  open  street  car,  it 
appeared  that  the  company  had  removed  paving  stones  from  the 
street  for  the  purpose  of  repairing  its  tracks,  and  there  was  evidence 
that  the  absence  of  paving  stones  made  the  passage  at  this  point 
dangerous,  and  that  this  caused  the  accident.  Held,  that  tliere  was 
suthcient  evidence  of  negligence  to  take  the  case  to  the  jury.  Val- 
entine V.  Railroad  Co.,  137  Mass.  28.  While  a  street-railroad  company 
has  the  right  to  remove  snow  from  its  tracks,  it  is  bound  to  exercise 
reasonable  care  and  diligence  in  so  doing;  and,  if  it  negligently  per- 
mits a  ridge  of  ice  and  snow  to  accumulate  for  some  weeks  along 
its  tracks,  it  is  liable  for  injuries  sustained  by  a  passenger  who 
slipped  on  this  ridge,  and  fell  under  the  wheels  of  a  car  he  was 
about  to  board.     Dixon  v.  Railroad  Co.,  100  N.  Y.  170,  3  N.  E.  6-5. 

3  Birmingham  v.  Railroad  Co.,  137  N.  Y.  13,  32  X.  E.  995,  reversing 
63  Hun,  635,  18  N.  Y.  Supp.  649,  59  Hun,  583,  14  N.  Y.  Supp.  13.  The 
court  said:  "Where  a  steam  railroad  has  a  right  to  build  a  brluge, 
and,  instead  of  building,  leases  the  right  to  cross  the  bridge  of  another, 
tlie  reason  for  holding  that  such  bridge  is  thereby  adopted  its  own  by 
the  company  using  it  is  obvious.  It  is  a  voluntary  matter  on  the  part 
of  the  company  whether  to  build  its  own,  or  ito  lease  tlie  bridge  of  an- 
other; and,  if  it  choose  the  latter  mode  of  crossing  the  obstruction,  it 
is  but  another  way  of  obtaining  a  bridge  of  its  own,  and,  when  it  thus 
contracts  for  its  use,  it,  of  course,  adopts  it  as  its  own  structure.  The 
position  of  a  street  railway  in  attempting  to  carry  on  its  business  of 

(78) 


Oh.    2)  DUTY    AS    TO    MEANS    OF    TKANSPORTATOX.  §    3S 

In  conclusion,  it  should  be  stated  that,  while  a  iini- 
uicipal  corporation,  in  the  exercise  of  the  police  power, 
can  prohibit  such  an  adjustment  of  street-car  tracks 
as  will  eudanuer  the  lives  of  passenjiers,  the  failure  to 
exercise  that  power  does  not  render  the  city  liable  to 
a  i)assenger,  who,  wliile  riding  on  the  running  board 
t)f  an  open  car,  was  struck  by  a  trolley  pole  near  the 
track.* 

§  38.     DUTY  AS  TO  VEHICLES. 

Comnion  carriers  of  passengers  must  use  the  best 
mechanical  appliances  in  their  vehicles,  and 
exercise  the  highest  degree  of  practicable  care 
and  skill  to  determine  that  all  their  appliances 
are  safe  for  purposes  of  transportation;  but  they 
are  not  insurers,  and  consequently  are  not 
liable  for  latent  defects  not  discoverable  by  the 
exercise  of  proper  care  and  skill.  ^ 

running  cars  through  the  public  streets  of  a  city  has  nothiiiir  in  com- 
mou  with  that  occuiued  by  a  steam  raih'oad  under  the  circumstances 
mentioned."  It  was  held  that  the  street-railroad  company  was  not 
liable  for  an  injury  to  a  passenger  while  crossing  the  bridge,  caused 
by  the  breaking  of  a  bridge  attachment,  which  was  defective  when 
placed  in  position:  the  defect  being  discoverable  by  the  maker  in  the 
process  of  manufacture,  but  not  discoverable  from  any  examination 
that  could  be  made  by  any  person  using  the  bridge  for  crossing.  But 
in  Catalanotto  v.  Railroad  Co.  (City  Ct.  Brook.)  7  N.  Y.  Supp.  62S,  it 
was  held  negligence  in  a  street-car  driver  to  drive  at  a  rapid  rate  of 
Bpeed  over  a  draw  bridge  si)anning  a  canal,  when  he  knew  that  the 
vacillation  caused  thereby  was  liable  to  dislodge  a  heavy  weight  sus- 
pmded  near  the  car  track,  and  used  in  operating  the  draw. 

4  Kennedy  v.  City  of  Lansing,  9!i  Mich.  .")18,  58  X.  W.  470. 

§  38.  1  Anthony  v.  Uaihoad  Co.,  27  Fed.  71' 1:  Nashville  &  C.  R.  Co. 
V.  Messino,  1  Sueed,  220.     And  see,  ante,  §§  1,  2. 

(79) 


§    38  CARRIERS   OF  PASSENGERS.  (Ch.    2 

In  behalf  of  the  proposition  that  carriers  of  passen- 
gers absolutely  warrant  the  roadworthiness  of  their 
vehicles,  many  a  gallant  legal  battle  has  been  fought, 
but  generally  without  avail.  Aside  from  a  few  dicta 
in  the  earlier  English  cases,^  and  a  decision  of  the 
New  York  court  of  appeals,^  now  overruled, ■*  the 
courts  have  uniformly  held  that  in  these  respects,  as 
well  as  in  all  others,  the  carrier's  liability  depends  on 
negligence.^  In  some  of  the  states,  however,  by  force 
of  statute,  a  different  rule  prevails.  The  Civil  Code 
of  California  provides:  "A  carrier  of  persons  for  re- 
ward is  bound  to  provide  vehicles  safe  and  fit  for  the 
purpose  to  which  they  are  put,  and  is  not  excused  for 
default  in  this  respect  by  any  degree  of  care."  ® 

The  carrier's  duty  with  respect  to  vehicles  has  been 

2  Sharp  V.  Grey,  9  Bing.  457;  Bremner  v.  Williams,  1  Car.  &  P.  414- 
410;    Israel  v.  Clark,  4  Esp.  259. 

3  Aldeu  V.  Railroad  Co.,  26  N.  Y.  102. 

4  Carroll  v.  Railroad  Co.,  58  N.  Y.  158;  Mc-radden  v.  Railroad  Co., 
44  N.  Y.  478.  In  Readliead  v.  Railway  Co.,  L.  R.  4  Q.  B.  379,  392.  it 
was  said,  with  reference  to  Alden  v.  Railroad  Co.:  "The  English 
courts  are  desirous  to  ti-eat  the  American  decisions  with  great  respect; 
but,  as  their  authority  here  must  mainly  depend  on  the  reasons  on 
which  they  are  founded,  we  have  felt  bound  to  examine  the  reasons  on 
which  this  decision  was  based,  with  the  result  which  has  already 
been  stated." 

5  See,  ante.  §§  1,  2;  Readhcad  v.  Railway  Co.,  L.  R.  4  Q.  B.  379;  Car- 
roll V.  Railroad  Co.,  58  N.  Y.  138;  Meier  v.  Railroad  Co.,  64  Pa.  St. 
225.  A  railroad  company  is  not  liable  for  injuries  to  a  passenger  who 
tripped  on  the  car  step,  where  he  himself  admits  that  he  looked  at  the 
car  step,  and  saw  nothing  wrong,  and  numerous  witnesses  agree  that 
it  was  not  defective.  Hitchcock  v.  Railroad  Co.,  50  Hun,  606,  3  N.  Y. 
Supp.  218. 

<■■  Section  2101.    Comp.  Laws  Dak.  1887,  §  3839,  and  Code  Mont.  1895, 
§  2r91.  are  identical  with  this  section. 
(80) 


Ch.    2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  §    38 

enforced  in  many  cases.  A  carrier,  it  is  said,  does  not 
fulfill  his  duty  to  bis  passenjiers  by  providing  appli- 
ances wbicb  are  sound  and  complete  wben  tested  by 
those  in  use  on  his  line,  but  he  must  see  to  it  that  they 
are  of  a  safe  kind.'  And  extraordinary  diligence  will 
require  the  carrier  to  use  the  appliances  he  has, 
though  it  might  not  require  him  to  provide  them.^  In 
supplying  grips  and  brakes,  a  cable  railway  company 
is  bound  to  anticipate  and  take  into  consideration  all 
such  weather  and  conditions  of  the  track  as  may  be 
reasonably  expected  in  the  climate  where  operated." 
A  railroad  company  which  is  unable,  from  causes  be- 
yond its  control,  to  provide  a  passenger  coach  accord- 
ing to  its  contract,  and  which  substitutes  a  baggage 
car,  is  liable  for  injuries  to  a  passenger  caused  by  some 
defect  in  the  car,  unless  it  can  show  that  it  exercised 
the  utmost  care  and  diligence,  and  that  the  baggage 
car  was  a  safe  conveyance.^"     But  it  must  be  borne  in 

T  Fill  ish  V.  Reigle,  11  Grat.  G'JT,  710. 

8  Augusta  R.  Co.  v.  Glover,  92  Ga.  132,  18  S.  E.  406.  Although  there 
may  be  no  negligence  whatever  in  the  failure  of  an  electric  street-car 
company  to  have  gates  to  the  platforms  of  its  cars,  for  the  purpose  of 
guarding  against  accidents  to  passengers  by  preventing  them  fron* 
leaving  the  cars  on  the  wrong  side,  yet  when  a  particular  company  has- 
8uch  gates  to  the  platforms  of  its  cars,  the  failure  to  keep  them  clused 
may  or  may  not  be  negligence  in  the  given  instance,  and  this  is  a  ques- 
tion of  fact  for  the  jury.     Id. 

9  Sharp  V.  Railway  Co.,  114  Mo.  l>4,  20  S.  W.  93. 

10  Baltimore  «S:  P.  R.  Co.  v.  Swann,  81  Md.  4Q0,  32  Atl.  175.  It  is 
the  duty  of  a  railroad  company,  when  placing  ladders  at  the  ends  of 
cars,  instead  of  on  the  outside,  to  provide  such  bumpers  or  agencies  as 
will  prevent  cars  that  are  coupled  togetlier  from  coming  so  close  to- 
gether as  to  imperil  the  life  or  limb  of  a  peisDii  who  m:iy  b(>  lawfully 
employing  such  ladders,— such  as  a  cattle  drover  iuspecliug  Ids  stock 

V.  1  FET.CAR.PAS. 6  <.^^) 


§    38  CARRIERS   OF  PASSENGERS.  (Ch.    2 

mind  that  conveyances  are  constructed  with  reference 
to  their  careful  and  prudent  use  by  passengers,  and 
that  construction  cannot  be  said  to  be  defective  which 
is  only  unsafe  in  view  of  the  careless  conduct  of  a  pas- 
senger in  voluntarily  jumping  on  or  off  a  car  in  mo- 
tion." So  there  is  no  principle  of  law  which  requires 
a  carrier  to  furnish  its  road  with  new  cars  to  transport 
passengers,  or  w^hich  makes  it  liable  for  using  old 
ones.  Whether  new  or  old,  it  is  required  to  keep 
them  in  good  repair,  and  fit  for  use,  so  as  not  to  en- 
danger the  safety  of  passengers.'-  The  fact  that  the 
sheathing  of  a  wheel  on  a  street  car  projects  above  the 
lloor  is  not  evidence  of  negligence  against  the  com- 
pany, where  there  is  ample  room  to  enter  and  leave 
the  car;  and  a  passenger  who  in  broad  daylight  stum- 
bles over  such  a  projection,  while  rising  to  signal  the 

•while  the  train  is  in  motiou.  New  York,  C.  &  St.  L.  R.  Co.  v.  iiiimu  u- 
thal.  57  111.  App.  538,  affirmed  in  160  111.  40,  43  N.  E.  8  ti).  In  an  action 
for  injuries  to  a  passenger  ridinn'  in  a  caboose  attached  to  cars  loaded 
with  logs,  it  appeared  that  the  train  was  derailed  owing  to  the  fact 
that  one  of  the  logs  rolled  from  its  place  onto  the  track.  It  also  ap- 
peared that  the  load  in  question  was  seven  feet  high,  while  it  was 
usual  to  load  the  logs  only  from  four  to  six  feet  high,  and  that  the  top 
log  \\as  secured  by  a  block,  because  of  a  crooked  log  underneath  it. 
Hi>ld,  that  the  question  of  negligence  was  for  the  jury-  Keating  v. 
Railroad  Co.,  104  Mich.  418.  G2  N.  W.  575.  Whether  failure  to  put 
guards  in  front  of  the  wheels  of  a  street  car,  as  required  by  an  ori1i- 
nauee,  is  negligence,  and,  if  so,  whether  the  absence  thereof  was  the 
cause  of  an  injury  to  one  who,  trying  to  get  on  the  front  platform 
waule  the  car  was  moving,  missed  his  footing,  and  got  his  foot  under 
the  wheel,  while  holding  with  both  hands  on  the  railing-;,  are  qu.  sious 
for  the  jury.     Finkeldey  v.  Cable  Co.,  114  Cal.  28.  45  Pac.  99l). 

11  Werbowlsky  v.  Railroad  Co.,  8G  Mich.  230,  4S  N.  W.  10U7. 

12  Wormsdorf  v.  Railroad  Co.,  75  Mich.  472,  42  N.  W.  lOOQ. 

(82) 


Ch.    2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  §    39 

conductor  to  stop  the  car,  cannot  recover  for  the  in 
juries  sustained. 


13 


§  39.     SAME— LATENT  DEFECTS. 

The  law  may  now  be  regarded  as  settled,  except 
where  a  statute  exists  to  the  contrary,  that  a  common 
carrier  of  passengers  is  not  liable  for  injuries  to  a  pas- 
senger caused  by  a  latent  defect  in  tlie  vehicle.  The 
leading  American  case  on  the  subject  is  that  of  Ingalls 
V.  Bills,'  and  the  leading  English  authority  is  Read- 
.  head  v.  Midland  E.  Co.-  In  the  Massachusetts  case, 
which  was  an  action  for  injuries  to  a  passenger  in  a 
stage  coach,  it  was  held  that,  "where  the  accident 
arises  from  a  hidden  and  internal  defect,  which  a  care- 
ful and  thorough  examination  would  not  disclose,  and 
which  could  not  be  guarded  against  by  the  exercise  of 
a  sound  judgment  and  the  most  vigilant  oversight, 
then  the  proprietor  is  not  liable  for  the  injury,  but  the 
misfortune  must  be  borne  by  the  sufferer  as  one  of  that 
class  of  injuries  for  which  the  law  can  afford  no  re- 
dress in  the  form  of  a  pecuniary  recompense."  ^  In 
the  English  case  it  was  ruled  that  a  passenger  could 
not  recover  for  injuries  caused  by  the  breaking  of  the 
tire  of  one  of  the  car  wheels  owing  to  "a  latent  defect 
in  the  tire  which  was  not  attributable  to  any  fault  on 

13  Farlty  v.  Tractiou  Co.,  182  Pa.  St.  5S.  18  Atl.  lOUU.  atliniiiiiii-  0  I'a. 
Co.  Ct.  R.  347.  .See,  to  same  effect,  Thompsoa  v.  Railway  Co.  (Mo. 
Sup.  I  36  S.  W.  025. 

§  39.    19  Mete.  (Mass.)  1. 

a  L.  R.  4  Q.  B.  379. 

3  Injialls  V.  Bills,  9  Mete.  (.Mass.)  1. 

(S3) 


§    39  CARRIERS   OF  PASSENGERS.  (Ch.    2 

the  part  of  the  manufacturer,  and  could  not  be  de- 
tected previously  to  the  breaking."  * 

A  "latent  defect"  has  been  defined  by  the  New  York 
court  of  appeals  to  be  "such  only  as  no  reasonable 
degree  of  human  skill  and  foresight  could  guard 
against."  ^  It  has  been  frequently  held  that  a  railroad 
company  is  not  liable  for  injuries  sustained  in  the  de- 
railment of  a  train  caused  by  a  defect  in  the  axle  of  one 
of  its  cars,  which  could  not  have  been  discovered  by 
the  highest  degree  of  care  known  to  the  best  railroad 
experts.®  So  it  has  been  held  that  a  carrier  of  pas- 
sengers is  not  liable  for  injuries  caused  by  the  bursting 
of  a  boiler  owing  solely  to  a  latent  defect  not  discov- 
erable on  examination,  or  by  the  application  of  any 

4  Readhead  v.  Railway  Co.,  L.  R.  4  Q.  B.  379. 

6  Palmer  v.  Caual  Co.,  120  N.  Y.  170,  24  N.  E.  302,  affirming  46  Hun, 
486.  A  carrier  of  passengers  is  liable  for  injuries  wliicli  happen  by 
reason  of  defects  in  the  carriage,  which  might  have  been  discovered  by 
the  most  careful  and  thorough  examination,  but  not  for  an  mjury 
which  happens  in  consequence  of  a  hidden  defect,  which  could  not  upon 
examination  have  been  discovered.  Hadley  v.  Cross,  34  Vt.  586.  In 
the  case  of  a  latent  defect  in  an  appliance  for  the  carriage  of  passen- 
gers, the  question  is  not  whether  the  carrier  had  actual  notice  of  it 
sufficiently  long  before  the  accident  to  have  con-ected  and  repaired  it; 
but  is  wliether,  by  the  exercise  of  that  high  degree  of  care  required  of 
caiTiers  of  passengers,  it  might  have  been  disc*overed  and  remedied. 
West  Chicago  St.  R.  Co.  v.  Stephens,  66  111.  App.  303. 

6  Texas  &  P.  Ry.  Co.  v.  Buckalew  (Tex.  Civ.  App.)  34  S.  W.  165: 
Hanley  v.  Railroad  Co.  (1846)  1  Edm.  Sel.  Cas.  (N.  Y.)  359.  A  railroad 
company  is  not  liable  for  an  injury  to  a  passenger  caused  by  the  breali- 
ing  of  a  car  wheel,  which  was  manufactured  in  a  proper  manner  by 
reputable  manufacturers,  and,  like  the  axle,  without  a  blemish,  and 
no  defect  was  discoverable  after  the  usual  examination  and  test  on  the 
night  of  the  accident.  Frelsen  v.  Southern  Pac.  Co.,  42  La.  Ann.  673, 
7  South.  800;  Grand  Rapids  &  I.  R.  Co.  v.  Boyd,  65  Ind.  526;  Toledo, 
W.  &  W.  Ry.  Co.  V.  Beggs,  85  111.  80. 
(S4) 


Ch.    2)  DUTV    AS    TO    MEANS    OF    TRANSPORTATION.  §   40 

tests  known  or  practicable/  Whore  a  cable  company 
makes  a  thorongli  examination  of  its  cars  every  night, 
including  grips  and  brakes,  it  is  not  liable  for  an  ac- 
cident caused  by  the  breaking  of  the  grip,  owing  to 
some  latent,  hidden  defect,  not  apparent  to  the  eye, 
and  not  discoverable  by  examination  and  tests/  Nei- 
ther is  a  railroad  company  liable  for  mortification  and 
discomforts  endured  by  a  female  passenger  while  lock- 
ed in  the  water-closet  of  a  car  owing  to  a  defect  in  the 
lock,  where  it  appears  that  the  lock  was  of  the  best 
manufacture;  that  the  defect  was  not  discoverable  be- 
fore the  accident;  that  as  soon  as  plaintiff's  predica- 
ment was  discovered  the  train  hands  took  steps  to  re- 
lease her;  and  that,  with  her  husband's  assistance,  she 
got  out  of  the  closet  through  a  window/ 

§  40.     SAME— LIABILITY  FOR  NEGLIGENCE  OF 
MANUFACTURER. 

Closely  connected  with  the  subject  of  latent  defects 
is  the  question  whether  or  not  a  carrier  which  pur- 
chases its  appliances  from  reputable  manufacturers  is 
liable  for  defects  therein  which  it  could  not  have  dis- 
covered by  any  test  after  the  appliances  came  into  its 
possession,  but  which  could  have  been  discovered  by 
the  manufacturers  in  the  exercise  of  proper  care.     We 

7  Carroll  v.  Railroad  Co.,  58  N.  Y.  12(j;  Robinson  v.  Railroad  Co.,  9 
Fed.  877;    Illinois  Cent.  R.  Co.  v.  Phillips,  ."".5  111.  194. 

8  Carter  v.  Railway  Co.,  42  Fed.  37.  A  vessel  is  not  liable  lor  in- 
juries to  a  passenger  caused  ))y  a  latent  detect  in  a  sail  boom.  The 
Nederland,  14  Fed.  (!:3.  aftirniinj,'  7  Fed.  92tj. 

8  Gulf.  C.  &  S.  F.  R.  Co.  V.  Siiiitii  (Tex.  Civ.  App.)  30  S.  W.  ^01. 

(85) 


§    40  CARRIERS   OF  PASSENGERS.  (Ch.   2 

have  seen  that  a  railroad  company  is  chargeable  with 
the  neoiicence  of  independent  contractors  in  the  con- 
struction  of  its  track,'  and  tlie  weight  of  authority  and 
of  reason  is  in  favor  of  its  liability  for  the  negligence 
of  manufacturers.      The  leading  case  on  the  subject  is 
Hegeman  v.  Western  R.  Corp.'  which  held  that  a  rail- 
road company  is  liable  for  an  injury  to  a  passenger 
caused  by  the  breaking  of  an  axle  of  a  car  wheel  owing 
to  a  latent  defect,  which  would  not  be  discovered  by 
the   most  vigilant  external   examination,   but  which 
could  have  been  ascertained  by  a  known  test  applied 
in  the  process  of  construction  by  the  manufacturer. 
The  court  said :      "It  was  said  that  carriers  of  passen- 
gers are  not  insurers.      That  is  true.      That  they  were 
not  required  to  become  smelters  of  iron,  or  manufac- 
turers of  cars,  in  the  prosecution  of  their  business. 
This  also  must  be  conceded.      What  the  law  does  re- 
quire is  that  they  shall  furnish  a  sufficient  car  to  se- 
cure the  safety  of  tJieir  passengers  by  the  exercise  of 
the  utmost  care  and  skill  in  its  preparation.     They 
may  construct  it  themselves,  or  avail  themselves  of  the 
services  of  others;  but  in  either  case  they  engage  that 
all  that  well-directed  skill  can  do  has  been  done  for 
the  accomplishment  of  this  purpose.      A  good  reputa- 
tion upon  the  part  of  the  builders  is  very  well,  in  itself, 
but  might  not  be  accepted  by  the  public  or  the  law  as 
a  substitute  for  a  good  vehicle.      What  is  demanded, 
and  what  is  undertaken  by  the  corporation,  is  not 
merely  that  the  manufacturer  had  the  requisite  ca- 
pacity, but  tliat  it  was  skillfully  exercised  in  the  par- 

§  40.    1  Ante,  §  30.  «  13  N.  Y.  9. 

(86) 


Ch.    2)  DUTY    AS    TO    MEANS   OF    TRANSPORTATION.  §    40 

titular  instance.      If  to  this  extent  they  are  not  re- 
sponsible, there  is  no  secnrity  for  in<lividuals  or  the 
public."      This  case  has  recently  been  reattirmed  by 
the  New  York  conrt  of  appeals,^  and  a  similar  decision 
has  been  made  in  California.*      On  the  other  hand,  it 
has  been  lu^ld  by  the  supreme  court  of  Michigan  that 
a  railway  company  is  not  responsible  for  the  negli- 
gence of  the  manufacturers  from  whom  it  purchases 
its  rolling  stock,  and  who  have  a  reputable  standing 
as  manufacturers,  where,  before  accepting  the  stock, 
it  makes  the  usual  and  practical  insi^ection,  without 
discovering  latent  defects.      "There  is  no  principle  of 
law  which  places  such  manufacturers  in  the  position 
of  agents  or  servants  of  their  customers.     The  law 
does  not  contemplate  that  railroad  companies  will  in 
general  make  their  own  cars  and  engines;    and  they 
purchase  them  in  the  market,  of  persons  supposed  to 
be  competent  dealers,  just  as  they  buy  tJieir  other  arti- 
cles.     All  that  they  can  reasonably  be  expected  to  do 
is  to  purchase  such  cars  and  other  necessaries  as  they 
have  reason  to  believe  will  be  safe  and  proper,  giving 
them  such  inspection  as  is  usual  and  practicable  when 
they  buy  them.      AA'hen  they  make  such  inspection, 
and  discover  no  defects,  they  do  all  that  is  practicable, 
and  it  is  no  neglect  to  omit  attempting  what  is  im- 

3  When  a  drawbar  is  toade  to  be  put  into  a  car,  tlie  dutj-  is  to  apply 
the  known  tests  to  ascertain  whether  it  is  in  all  respects  fit  for  the  pur- 
pose it  is  intended  to  serve;  and  if,  in  conseciuence  of  the  failure  to 
do  so,  the  defect  is  not  discovered,  the  railroad  company  is  responsible 
for  an  injuiy  to  a  passenger  caused  by  the  defect.  Palmer  v.  Canal 
Co..  120  N.  Y.  170,  24  X.  E.  302,  atlirmins  46  Hun,  486. 

*  Treadwell  v.  ^^■hillicr.  So  Cal.  374,  22  Pac.  2UG. 

(87) 


§41  CARRIERS   OF   PASSENGERS.  (Ch.    2 

practicable.  They  have  a  right  to  assume  that  a  deal- 
er of  good  repute  has  also  used  such  care  as  was  in- 
cumbent on  him,  and  that  the  articles  purchased  of 
him  which  seem  right  are  right  in  fact.  Any  other 
rule  would  make  them  liable  for  what  is  not  negli- 
gence, and  put  them  practically  on  the  footing  of  in- 


surers." ^ 


§  41.     SAME— INSPECTION. 

A  passenger  is  entitled  to  expect  at  the  hands  of  a 
carrier  all  that  skill  and  care  and  prudence  can  do  to 
protect  the  public  from  defects  in  the  appliances  of 
transportation.  In  inspecting  its  vehicles,  the  car- 
rier is  bound  to  use  all  the  care  and  skill  possessed  by 
practical  men  in  that  business,  but  it  need  not  press  in- 
to its  service  the  microscopic  eye  of  science,  with  its  del- 
icate instruments  and  measurements.^  But  since  the 
safety  of  thousands,  who  daily  travel  on  railroad  cars, 
depends  in  a  great  measure  on  the  strength  and  fitness 
of  the  appliances  used  for  their  transportation,  the 
company  is  bound  to  apply  all  known  certain  and  sat- 
isfactory tests  within  its  reach,  and  will  not  be  exon- 
erated if  it  relies  on  a  test  clearly  insufficient."  The 
fact  that  the  company  has  adopted  a  system  of  inspec- 
tion and  examination  is  not  necessarily  conclusive  in 

6  Grand  Rapids  &  I.  R.  Co.  v.  Huntley,  38  Mich.  537. 

§  41.     1  Coekburn,  C.  J.,  in  Stokes  v.  Railway  Co..  2  Fost.  &  F.  601. 

2  Texas  &  P.  Ry.  Co.  v.  Hamilton,  66  Tex.  92,  17  S.  W.  406.  Testing 
a  car  wheel  on  the  track  by  striking  it  with  a  hammer  is  not  sufficient 
if  an  existing  crack  cannot  be  discovered  thereby,  and  it  appears  that 
such  crack  can  be  discovered  by  testing  it  with  a  hammer  while  off 
the  track. 


Ch.  2)     DUTY  AS  TO  MEANS  OF  TRANSPORTATION.       §  41 

its  favor  on  the  question  of  negligence.  Wliether  or 
not  the  system  and  the  manner  of  its  execution  are  all 
that  may  be  required  of  the  carrier  is  a  question  for 
the  jury.^  And  the  fact  that  an  examination  has  been 
made  ^'ill  not  relieve  the  carrier,  if  the  dutv  was  nea- 
ligently  performed.^  The  question  how  often  an  in- 
spection should  be  made  is  generally  one  of  fact  for 
the  jury,  though  Best,  C.  J.,  said  it  was  negligence  in 
a  coach  proprietor  not  to  examine  his  coach  before 
each  journey.^      If  anything  happens  during  the  jour- 

3  Palmer  v.  Canal  Co.,  120  N.  Y.  170,  24  N.  E.  302,  affirming  46  Hun, 
4SG.  Failure  to  inspect  a  Spindle  of  a  drawbar  for  two  years  makes  it 
a  question  for  the  jury  wh<^ther  the  company  exercised  a  proper  de- 
gree of  care,  though  the  removal  and  examination  of  the  spindle  were 
not  within  the  system  of  inspection  adopted  by  the  company. 

4  Keating  v.  Railroad  Co.  (Mich.)  62  N.  W.  575. 

5  Bremner  v.  ^Mlliams,  1  Car.  &  P.  414.  The  driver  of  a  stage 
-coach,  who  makes  no  examination  of  the  brakes  beyond  merely  look- 
ing at  them  when  he  takes  charge,  is  guilty  of  negligence  in  com- 
mencing the  descent  of  a  hill  without  assuring  himself  that  the  blocks 
are  in,  which  he  can  do  by  simply  applying  his  feet  to  the  brake. 
And  where,  owing  to  the  absence  of  blocks,  rendering  the  brake  use- 
l('s?j,  the  stage  i-uus  into  the  horses,  frightening  them  into  running 
away,  and  overturning  the  coach,  the  proprietors  are  liable  for  inju- 
ries to  a  passenger.  Parish  v.  Reigle,  11  Grat.  697,  721.  A  female 
passenger,  in  alighting  fi-om  an  oi)en  street  car,  caught  her  dress  in  a 
broken  hook,  used  to  fasten  the  side  curtains  of  the  car,  and  fell, 
breaking  her  arm.  There  was  no  evidence  as  to  how  or  when  the 
hook  was  broken,  but  defendant  showed  that  no  better  way  of  fas- 
tening the  curtains  existed;  that  the  springs  in  the  hooks  would  some- 
times break  by  use;  that,  at  the  end  of  each  trip,  tlie  cars  were  in- 
Bpected  by  persons  assigned  to  that  duty,  and  the  eurl;iins  exam- 
ined: and  that,  if  a  broken  hook  was  discovered,  it  was  replaced  by 
a  perfect  one.  Held,  that  no  negligence  on  the  part  of  defendant  had 
been  shown.  Kelly  v.  Railway  Co.,  109  N.  Y.  44,  15  N.  E.  879,  n;- 
versiug  39  Hun,  486.  When  a  car  wheel  was  new,  and  before  it  was 
used,  it  was  properly  and  regularly  tested  by  hammering  it  all  aroimd 

(8U) 


§41  CARRIERS   OF   PASSENGERS.  (Ch.    2 

ney  which  will  charge  the  employes,  as  reasonable 
men,  with  notice  that  something  abont  the  vehicle  is 
defective,  it  is  their  duty  to  make  the  inspection,  and 
they  are  not  relieved  from  this  duty  by  the  fact  that 
an  inspection  had  been  made  shortly  before.*^  But  to 
determine  whether  the  conductor  of  a  passenger  train 
has  been  guilty  of  negligence  in  this  respect,  the  test 
is  not  whether  he  omitted  doing  something  that  he 
could  have  done,  which,  if  done,  would  have  prevented 
the  injury,  but  whether  he  abstained  from  doing  any- 
thing which,  in  the  exercise  of  extraordinary  care  and 
prudence,  he  consciously  ought  to  have  done,  and  did 
uot  do,  the  omission  of  which  caused  the  accident  pro- 

and  over;  and,  although  this  was  a  test  not  absolutely  flxed  and 
certain  to  discover  defects,  it  was  the  best  known  and  usual  course 
pursued.  No  defect  was  then  discovered.  The  wheel  was  after- 
wards much  used,  and  thereby  reduced  in  thickness,  and  considerably 
woru.  The  tire  was  theu  re-turned.  Held,  that  the  jury  was  war- 
ranted in  finding  defendant  guilty  of  negligence  in  not  again  testing 
the  wheel  at  this  time,  where  there  was  evidence  that  an  original  de- 
fect in  its  construction  could  then  have  been  discovered.  Manser  v. 
Railway  Co..  3  Law  T.  (N.  S.)  58-5. 

6  Texas  &  St.  L.  Ry.  Co.  v.  Suggs,  62  Tex.  323.  A  street-car  driver 
who  neglects  to  examine  the  car  door  which  he  knows  has  been  in- 
jured by  a  drunken  man  in  his  effort  to  get  in,  and  to  warn  another 
passenger  of  the  danger,  is  guilty  of  negligence  which  will  render  the 
company  liable  for  injuries  to  the  passenger  caused  by  the  falling  of 
broken  glass  from  the  door.  Allen  v.  Railroad  Co.  (City  Ct.i  2  X.  Y. 
Supp.  738.  Where  a  railroad  company,  on  receiving  a  foreign  truck,, 
discovers  a  defect  on  making  tlie  usual  general  inspection,  repairs  it, 
and  sends  it  on  to  destination,  the  fact  that  by  a  minute  examination 
the  company  could  have  discovered  another  defect,  entirely  discon- 
nected with  the  one  previously  discovered,  does  not  render  it  liable  to 
a  passenger,  who  was  inj\u-ed  in  a  colUsion  caused  by  the  breaking  of 
the  track  by  reason  of  the  undiscovered  defect.  Richardson  v.  Rail- 
way Co.,  1  C.  P.  Div.  342. 
(90) 


Ch.    2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  §    42 

diuiug  the  injury."  Where  a  street  car  gets  out  of  re- 
pair during  the  trip,  the  servants  of  the  compau}'  can 
be  justified  in  contiuuiug  the  car  in  service  until  the 
power  house  is  reached,  only  by  giving  passengers  full 
notice  of  the  condition  of  the  car,  and  affording  theui 
an  opportunity  to  decide,  after  full  knowledge,  wheth- 
er they  will  continue  as  passengers.® 

§  42.     SAME— GUARDING  CAR  WINDOW. 

A  railroad  company  is  not  bound  to  screen  its  car 
■u  iudows  either  to  prevent  passengers  from  negligent- 
ly exposing  their  arms,  nor  to  guard  against  stones  or 
other  missiles  that  mav  be  thrown  from  the  outside  bv 
persons  o'ser  whom  the  company  has  no  control.^  A 
different  ruling  was  once  made  by  the  supreme  court 
of  Pennsylvania,-  but  the  case  has  been  overruled.' 

7  Frelsen  v.  Southern  Tac.  Co.,  42  La.  Ann.  073,  7  South.  800.  In 
this  case  a  conductor  was  told  bj  a  passenger  that  he  had  heard  an 
unusually  loud  noise,  and  had  felt  a  jolt  which  had  made  the  coach 
.iunip,  and  aroused  him.  The  conductor,  after  reasonable  inspection, 
inside  and  outside  the  car,  did  not  become  conscious  of  any  occasion 
for  alarm  and  danger.  Held,  that  the  conductor  was  not  bound  to 
stop  the  train  for  inspection,  and  that  the  companj^was  not  liable  for 
an  injury  to  a  passenger  in  a  derailment  of  the  coach  caused  by  the 
breaking  of  a  wheel  under  the  car  in  front,  which  could  have  been 
discovered  had  the  train  been  stopped,  and  an  inspection  made. 

8  Washington  v.  Railway  Co.,  i;i  Wash.  9,  42  Pac.  U28. 

§  42.  1  Missimer  v.  Railroad  Co.,  17  Phila.  172.  "The  carrier  is  no 
more  bound  to  barricade  the  windows,  to  prevent  passengers  from  ex- 
tending their  limbs  outside,  than  he  is  to  lock  the  doors  to  prevent 
th(!m  from  going  from  car  to  car,  and  thus  voluntarily  subjecting 
themselves  to  the  dangers  obviously  incident  to  that  act  of  rasliuess." 
Indianapolis  &  C.  R.  Co.  v.  Rutlierford,  29  Ind.  82. 

2  New  Jersey  R.  Co.  v.  Kennard,  21  Pa.  St.  203. 

8  Pittsburg  &  C.  R.  Co.  v.  McClurg,  56  Pa.  St.  294. 

(91) 


§    43  CARRIERS   OF  PASSENGERS.  (Ch.    2 

Indeed,  in  view  of  the  awful  holocausts  that  have  some- 
times happened  in  railroad  wrecks,  a  statute  of  New 
Jersey  makes  it  unlawful  for  railroads  to  use  passen- 
ger cars  with  screens,  bars,  or  gratings  across  the  win- 
dows.* In  a  recent  federal  case,  however,  it  was  left 
to  the  jury  to  determine  whether  reasonable  diligence 
requires  a  street-railroad  company  to  place  guards  in 
front  of  the  street-car  windows  to  prevent  passengers 
from  exposing  their  hands  and  arms,  or  to  prevent 
their  being  jolted  out  of  the  window  by  the  motion  of 
the  car/ 

§  43     SAME— CAR  PLATFORMS. 

It  is  negligence  in  a  railroad  company  to  permit  a 
bolt  or  any  other  object  to  project  above  the  surface 
of  the  car  platform  in  such  a  manner  that  passengers 
leaving  the  car  are  liable  to  be  tripped  and  thrown 
thereby/  So  a  brake  wheel  on  a  passenger  car  which 
is  liable  to  suddenly  revolve  on  application  of  the  air 
brakes,  unless  the  ratchet  wheel  is  held  by  the  dog, 
should  be  securely  fastened,  and  failure  to  do  so,  re- 
sulting in  injury  to  a  passenger,  who  places  his  hand 
on  the  wheel  as  he  is  about  to  leave  the  car,  is  negli- 
gence/     Where  a  passenger  is  injured  by  the  break- 

4  Supp.  Rev.  p.  844,  §  80. 

6  New  Orleans  &  C.  R.  Co.  v.  Schneider,  8  C.  C.  A.  571,  60  Fed.  210. 

§  43.  1  Chartrand  v.  Railway  Co.,  57  Mo.  App.  425;  Chicago  &  A. 
R.  Co.  V.  Gates,  61  111.  App.  211;  Chase  v.  Railway  Co.,  60  Hun,  5S2. 
15  N.  Y.  Supp.  35,  affirmed  133  N.  Y.  619,  30  N.  E.  1150. 

2  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v.  McHenry,  47  111.  App.  301. 
Whether  it  is  negligence  not  to  have  a  chain  stretched  between  the 
railings  of  the  platform  of  a  passenger  coach  in  a  mixed  ti'ain,  to  pre- 
vent passengers  from  falling  in  case  of  any  sudden  or  unexpected 
(92) 


Ch.    2)  DUTY    AS    TO    MEANS    OF    TRANSPORTATION.  §    43 

iug  of  a  street-car  platform,  and  it  appears  that  the 
car  had  been  used  for  more  than  12  years,  it  is  proper 
to  submit  to  the  jurj^  the  question  wliether  the  phit- 
form  was  safe,  and  whether  defendant  knew,  or  couhl 
by  the  exercise  of  reasonable  care  have  known,  that  it 
was  unsafe.^  But  no  legal  duty  is  imposed  on  a  rail- 
road company  to  remove  ice  from  the  railing  or  plat- 
form of  the  front  end  of  the  express  car,  or  to  make 
such  platform  safe  for  passengers  to  get  on  or  ride  on, 
since  it  is  not  designed  for  the  use  of  passengers.*  So 
it  has  recently  been  held  that  a  railroad  company  run- 
ning a  vestibule  train  is  not  required  to  place  a  mat 
on  the  car  platform,  to  prevent  passengers  from  step- 
ping into  an  opening  between  the  cars  while  the  train 
is  rounding  a  curve.  ^ 

Whether  or  not  it  is  negligence  not  to  inclose  the 
front  platform  of  a  crowded  street  car  with  guards  or 
fenders,  to  prevent  passengers  from  being  throw^n 
therefrom,  is  a  question  for  the  jury.®      But  in  the  case 

movement  of  the  train  while  passengers  are  about  to  alight,  is  one  of 
fact  for  the  jury.  Newton  v.  Railroad  Co.,  80  Hun,  491,  30  N.  Y. 
Supp.  -iSS. 

y  Xorris  v.  Railroad  Co.,  4  Misc.  Rep.  2!>4.  24  N.  Y.  Supp.  140,  af- 
fii  ined  14.3  X.  Y.  6fi(3,  39  N.  E.  21.  But  a  street-car  company  is  not 
liable  for  the  fracture  of  one  of  the  slats  comix)sing  its  platform,  un- 
der the  pressure  of  the  cnitch  of  a  passenger  weighing  280  pounds, 
where  the  wood  was  entirely  sound  and  undecayed.  and  the  platform 
Av.is  constructed  in  the  same  manner  as  all  street-car  platforms  are 
c  u  trr.cted.     Crogan  v.  Railroad  Co.,  IS  Alb.  Law  J.  70. 

4  Ohio  cS:  M.  Ry.  Co.  v.  AUender,  59  111.  App.  020. 

6  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Stout,  GfJ  111.  App.  2;)S. 

0  Archer  v.  Railway  Co.,  87  Mich.  Inl.  49  N.  W.  4ss;  West  Thila- 
delpliia  P.  Ry.  Co.  v.  (J.-ilLii-'lici',  lOS  Pa.  Si.  .'24;  Matz  v.  Riuhvay 
Co.,  52  Minn.  159,  53  N.  W.  1U71  (rear  platform). 

(93) 


§45  CARRIERS   OF  PASSENGERS.  (Ch.    2 

of  a  surbiirbau  line,  doin,i>  a  light  busiuc^ss,  it  is  not 
even  evidence  of  negligence.  "It  must  be  run  clieaply 
or  not  at  all.  Hence  its  cars  were  drawn  only  by 
single  horses,  and  supervised  by  single  persons;  and, 
as  they  were  used  without  turntables,  their  platform 
must,  of  necessity,  be  open."  ^ 

§  44.     SAME— MOTIVE  POWER  FOR  STREET  CARS. 

It  is  the  duty  of  a  street-railway  company  to  exer- 
cise reasonable  care  in  selecting  horses  for  use  on  its 
cars,  and  to  take  reasonable  steps  to  ascertain  wheth- 
er they  are  safe  for  such  use;  and  the  company  is  char- 
geable with  whatever  knowledge  a  driver  may  have  ac- 
quired or  discovered,  in  the  course  of  his  employment, 
with  respect  to  the  character  or  disposition  of  the 
horses  driven  bv  him.^  Where  electricitv  is  the  mo- 
tive  power,  knowledge  must  be  imputed  to  the  com- 
pany that,  if  the  electricity  escapes  from  a  defective 
machine  in  the  car,  the  iron  handles  of  the  platform 
are  liable  to  be  charged  therewith,  and  to  give  a  shock 
to  any  one  passing  from  one  car  to  the  other.^ 

§  45.     SAME— STATUTORY  REQUIREMENTS. 

Statutes  in  Ohio  and  Connecticut  require  the  plat- 
forms of  passenger  coaches  to  be  guarded  with  flexible 
or  movable  bridges  or  aprons.^      A  statute  of  Tenues- 

7  Hestonville  P.  Ry.  Co.  v.  Connell,  88  Pa.  St.  .j20. 

§  44.    1  Noble  v.  Railway  Co.,  98  Micb.  2i9,  57  N.  W.  126. 

2  Burt  V.  Railway  Co..  83  Wis.  229,  53  N.  W.  447. 

§  45.    1  Gen.  St.  Conn.  1888,  §  3540;    Rev.  St.  Ohio  1890,  §  3347. 

(04) 


Ch.    2)  DUTY    AS    TO    MEANS    OF   TRANSPORTATION.  §    -1 5 

see  requires  railroad  companies  to  provide  a  bell  rope 
for  each  and  even-  passenger  train  on  their  respective 
roads,-  and  statutes  in  several  states  require  passen- 
ger trains  to  be  equipped  with  automatic  air  brakes.' 

2  Code  Tenn.  1S84,  §  130(J. 

3  Gen.  St.  Ky.  1894,  §  778;  1  How.  Auu.  St.  Mich.  §  33(>:i:  Laws  \. 
T.  1884,  c.  4.".9,  §  6;  Pub.  St.  R.  I.  lfeS2.  c.  ir.S.  p.  407,  §  12;  St.  Vi. 
1894,  §  3910. 

(95) 


§4(3  CARRIERS  OK  PASSENGERS.  (Ch.   3 


CHAPTER  III. 

DUTY  OF  CARE  IN  CONSTRUCTION  AND  MAINTENANCE  OF 
STATIONAL  FACILITIES. 

§  4().  Exti'ut  of  Duty. 

47.  Degree  of  Care. 

48.  Defects  in  Station  Buildings. 

49.  Station  Platforms. 

50.  Same— Adjustment  Between  Platform  and  Trains. 
ni.  Approaelies. 

5L'.    Ownership  by  Third  Persons, 
.n."!.    Snow  and  lee. 
54.    Lights. 


§  46.     EXTENT  OP  DUTY. 

For  the  safety  of  its  passengers,  a  rail-way  com- 
pany is  bound  to  exercise  care,  not  only  as  to 
the  construction  and  maintenance  of  its  station 
buildings,  but  as  to  all  portions  of  its  platforms 
and  approaches  thereto  to  which  the  public  do 
or  would  naturally  resort,  and  all  portions  of 
the  station  grounds  reasonably  near  the  plat- 
form, where  passengers  or  those  who  have  pur- 
chased tickets  with  a  view  to  take  passage  on 
its  cars  would  naturally  or  ordinarily  be  liable 
to  go.' 

Tt.  is  a  general  principle  of  the  common  law  that  cue 
who  invites  another  to  come  on  his  premises  under- 
takes with  regard  to  that  person  a  duty  to  exercise 

§  46.    1  Dillon,  C.  J.,  In  McDonald  v.  Railway  Co.,  2(5  Iowa,  124, 
14.-).    See.  also,  Texas  &  St.  L.  Ry.  Co.  v.  Orr,  46  Ark.  182. 


Ch.    3)  DUTY    AS    TO    STATK^NAL    FACII-lTiES.  §    46 

care  that  the  premises  on  which  he  invites  the  person 
to  come,  the  approach  to  the  premises,  as  well  as  the 
exit,  shall  be  in  such  a  state  as  not  to  expose  the  per- 
son using  them,  in  consequence  of  the  invitation,  to 
undue  or  unreasonable  danger.  This  principle  lies  at 
the  foundation  of  the  carrier's  duty  to  any  passenger 
who  comes  on  his  premises.-  Wherever  passengers 
are  accustomed  to  be  received  upon  a  train,  whether 
at  the  station  house,  at  the  water  tank,  or  elsewhere, 
railroad  companies  are  bound  to  keep  in  safe  condition 
for  transit  the  ordinary  space  in  Avhich  passengers  go 
to  and  from  the  trains,  and  the  latter  have  the  right  to 
assume  that  the  ground  adjacent  to  the  cars,  within 
the  limits  in  which  persons  naturally  and  necessarily 
go  to  and  from  them,  admits  of  their  getting  safely  out 
and  in,  even  on  a  dark  night. ^ 

But  this  fluty  does  not  extend  to  places  where  pas- 

2  Paiuaby  y.  Canal  Co.,  11  Adol.,&  E.  2^3;  Gallin  v.  Railway  Co.,  L. 

R.  10  Q.  B.  212;  Bennett  v.  Railroad  Co.,  102  V.  S.  .177.  The  law  re- 
quires of  railroad  companies  that  they  provide  reasonably  safe  land- 
ings for  their  passengers,  as  also  like  means  of  access  to  and  ogress 
from  their  stations  and  premises.  They  must  have  due  regard  for 
the  safety  of  passengers,  as  well  in  the  location,  construction,  and 

arrangement  of  their  station  buildings  and  platforms,  as  in  their  pre- 
vious  transportation.     Stafford   v.   Railroad   Co..  22  Mo.   App.   333. 

See.  also,  Toledo,  W.  &  W.  Ry.  Co.  v.  Grush.  67  111.  262. 

3  Kulbert  v.  Railroad  Co.,  40  N.  Y.  145.  A  railroad  company  which 
has  been  in  the  habit  of  stopping  its  trains  at  a  street  crossing,  and 
receiving  and  discharging  passengers  there,  and  which  has  failed  to 
indicate,  by  platform  or  otherwise,  the  bounds  within  which  it  will 
be  safe  for  passengers  to  stand  while  awaiting  the  arrival  of  the 
train,  momentarily  expected,  cannot  complain  if  a  person  intending 
to  take  passage  stations  himself  at  any  point  adjoining  the  usual 
stopping  place,  where  it  might  reasonably  be  expected  that  any  part 
of  the   train  adapted  to  the   accommodation  of  passengers   would 

V,  1  FKT.CAU.PAS. 7  C'^^) 


§   47  CARRIERS  OP  PASSENGERS.  (Ch.   O 

sonjioi's  cannot  bo  reasonably  expected.*  The  duty 
arises  onlv  where  by  contract  or  usajie  the  carrier  is  re- 
(| wired  to  be  in  nsidiness  to  receive  his  passengers.^ 
Xoi-  is  a  raiii'oad  company  rnuning  a  construction 
train  ovei-  an  nnlinished  road  under  unj  obligation  to 
a  i>assenger  to  have  a  safe  and  suitable  platform  at  the 
end  of  its  line,  where  there  has  not  been  suflftcient  time 
to  furnish  the  facilities,  and  the  passenger  knows  tJie 
facts.*^ 

§  47.     DEGREE  OF  CARE. 

By  the  weight  of  authority,  only  ordinary  care  is 
required  of  the  carrier  in  the  construction  and 
maintenance  of  stational  facilities,  though  in 
many  of  the  states  the  highest  degree  of  care  is 
also  exacted  of  the  carrier  in  this  respect. 

The  diversity  of  judicial  opinion  as  to  the  degree  of 
care  required  of  a  common  carrier  for  the  safety  of  his 
passengers  at  the  station  finds  a  marked  illustration 
in  a  recent  case  decided  by  the  supreme  court  of  South 
Cai'olina.'  That  court  is  composed  of  three  justices, 
and  each  one  of  them  took  a  different  view  as  to  this 
fundamental  question.  Justice  McGowan  was  of 
oi)inion  tliat  the  general  rule  requiring  a  carrier  of 
passengers  to  exercise  the  highest  practicable  degree 
of  care  ai)plied  here  as  elsewhere.     Chief  Justice  Mc- 

ronio  to  a  stand.    Lake  Shore  &  M.  S.  liy.  Co.  v.  Ward.  35  111.  Ann 

*  -Murch  V.  Railroad  Corp..  29  N.  H.  9. 
=  The  Anglo  Norman,  4  isnwy.  lS,i,  Fed.  Cas.  No.  Sm. 
«  Cliicago,  K.  &  W.  Ky.  Co.  v.  Frazer.  55  Kan.  5S2.  40  Par.  92.3. 
S  47.    1  .Johns  V.  RaUroad  Co.  (1892)  39  S.  C.  102,  17  S.  E    098 
(98) 


Ch.    3)  DUTY    AS    TO    STATI>)XAL    FACILITIES.  §    47 

Iver  said  that  this  rule  was  adopted  only  because  of 
the  great  danger  to  human  life  during  the  process  of 
transportation,  that  the  reason  of  the  rule  ceased 
when  the  actual  transportation  ceased,  and  that  there- 
fore the  carrier  is  bound  only  to  ordinary  care  at  sta- 
tions.  Justice  Pope  succeeded  in  tiuding  a  middle 
ground,  and  held  that,  as  a  general  rule,  the  company 
need  exercise  only  ordinary  care  at  stations,  but  that 
when  it  used  appliances  of  exceptional  danger,  such 
as  a  trestle  10  feet  high,  oyer  which  it  inyited  passen- 
gers to  cross  to  reach  its  cars,  the  rule  of  extraordi- 
nary care  applied. 

The  decided  weight  of  authority,  however,  seems  to 
be  in  fayor  of  the  proposition  that  the  carrier  is  bound 
to  exercise  only  ordinary  care  for  the  safety  of  pas- 
sengers, so  far  as  the  construction  and  maintenance  of 
the  station  buildings,  platforms,  and  approaches  are 
concerned.  The  New  York  courts  are  fully  commit- 
ted to  this  rule.     In  Kelly  y.  Manhattan  Ry  Co.,'  Mr. 

2  111'  N.  Y.  443,  20  N.  E.  3S3.  In  this  case  it  was  held  that  au 
elevated  railroad  company  which  has  furnished  a  covered  stairway 
with  hand  rails,  and  placed  pieces  of  rubber  on  each  step  to  prevent 
slipping,  is  not  guilty  of  negligence  in  failing  to  throw  ashes  or  saw- 
dust on  the  steps  within  an  hour  and  a  half  after  the  ceasing  of  a 
storm  of  snow  and  sleet,  which  continued  to  rage  until  4  o'clock  in 
the  morning,  and  tliat  it  was  not'  liable  for  the  death  of  a  passenger 
who  fell  from  the  stair\Aay  at  about  5:30  a.  m.  In  Palruer  v.  Penn- 
sylvania Co.,  Ill  X.  Y.  488.  18  N.  E.  859,  it  was  held  that  a  railroad 
company  is  not  bound  to  the  highest  degree  of  diligence  in  removing 
from  its  car  steps  and  platforms  ice  and  snow  which  lias  accumu- 
lated while  the  train  Avas  in  transit.  The  degree  of  care  and  dili- 
gence required  of  railroad  companies  in  this  respect  is  somewhat 
analogous  to  that  imposed  on  municipal  corporations  in  respect  to 
the  removal  of  snow  and  ice  from   the  public  streets.     Tlie  same 

(99) 


§    47  CARRIERS   OF  PASSENGERS.  (Cll.    3 

Justice  Peckham  uses  this  language:  "The  rule  in  re- 
lation to  the  liability  of  railroad  corporations  for  inju- 
ries sustained  by  defects  in  the  approaches  to  their  cars 
differs  from  that  which  obtains  in  the  case  of  an  in- 
jury to  a  passenger  while  he  is  being  carried  over  the 
road  of  the  corporation,  and  where  the  injury  occurs 
from  a  defect  in  the  roadbed  or  machinery  or  construc- 
tion of  the  cars,  or  w^here  it  results  from  a  defect  in 
any  of  the  appliances,  such  as  would  be  likely  to  oc- 
casion great  danger  and  loss  of  life  to  those  traveling 

principle  is  announced  in  Lafflin  v.  Railroad  Co.,  lOG  N.  Y.  136,  32  N. 
E.  r.i)!).     In  that  case  a  passenger  in  aligliting  fell  between  the  ear 
and  the  station  platform,  and  she  alleged  that  the  space  between  the 
car  and  the  platform  (about  two  feet)  was  too  great.    It  was  held,  as 
matter  of  law,  that  defendant  was  not  liable,  in  view  of  the  fact 
that  the  platform  had  been  used  for  many  years,  and  that  no  one 
else  had  ever  suffered  any  injury  or  inconvenience  on  account  of  the 
distance  between  the  platform  and  the  cars.     In  Buck  v.  Railway 
Co.,  32  N.  Y.  St.  Rep.  51,  10  N.  Y.  Supp.  107,  attirmed  In  134  N.  Y. 
5Sy.  31  N.  E.  028.  it  is  held  that  the  rule  requiring  the  highest  degree 
of  care  does  not  apply  to  in.iuries  at  stations  caused  by  other  pas- 
sengers running  into  or  crowding  a  passenger  about  to  alight,  and  in 
such  a  case  the  carrier  is  bound  to  exercise  only  reasonable  care  to 
guard  agjiinst  injuries.     In  Bateman  v.  Railway  Co.,  47  Hun,  429, 
it  is  said:     "As  to  a  sidewalk  maintained  on  its  land  by  a  railroad 
company  for  the  use  of  passengers  in  going  between  the  depot  and 
a  public  street,  the  measure  of  care  due  from  the  company  to  its 
passengers,  whom  it  invites  to  use  it,  is  the  same  that  is  required 
of  a  municipal  corporation  with  respect  to  its  public  sidewalks,  which 
it  is  required  by  law  to  maintain."     See,  also,  O'Reilly  v.  Railroad 
Co,,  15  App.  Div.  7!),  44  N.  Y.  Supp.  2(34.     In  Bruswitz  v.  Navigation 
Co.,  04  Hun,  202,  19  N.  Y.  Supp.  75,  it  is  held  that  the  rule  requiring 
the  highest  degree  of  care  does  not  apply  in  an  action  for  injuries  to 
a  passenger  on  a  vessel  caused  by  stumbling  over  sockets  projecting 
above  the  floor,  and  used  to  secure  the  tables  in  the  dining  saloon" 
As  to  such  matters  not  connected  with  the  operating  machinery  the 
earner  is  bound  only  to  the  exercise  of  ordinary  care  and  skill  ' 
(100) 


Ca.  o)  duty  as  to  stational  facilities.  §  47 

on  the  road.  The  law  in  the  latter  case  requires  from 
the  carrier  of  passengers  the  exercise  of  the  utmost 
care,  so  far  as  human  skill  and  foresight  can  go,  for 
the  reason  that  a  neglect  of  duty  in  such  a  case  is  like- 
ly to  result  in  great  bodily  harm,  and  sometimes 
death,  to  those  who  are  compelled  to  use  that  means 
of  conveyance.  As  the  result  of  the  least  negligence 
may  be  of  so  fatal  a  nature,  the  duty  of  vigilance  on 
the  part  of  the  carrier  requires  the  exercise  of  that 
amount  of  care  and  skill  in  order  to  prevent  accidents. 
But  in  the  approaches  to  the  cars,  such  as  platforms, 
halls,  stairways,  and  the  like,  a  less  degree  of  care  is 
required,  and  for  the  reason  that  the  consequences  of 
a  neglect  of  the  highest  skill  and  care  which  human 
foresight  can  attain  to  are  naturally  of  a  much  less  se- 
rious nature.  The  rule  in  such  cases  is  tJiat  the  car- 
rier is  bound  simply  to  exercise  ordinary  care  in  view 
of  the  dangers  to  be  apprehended." 

Similar  decisions  have  been  made  in  California,'  in 
Illinois,*  in  lowa,^  in  Missouri,®  in  Oregon,^  in  Wiscon- 
sin,- and  by  the  federal  circuit  court  of  Ohio,*^  and  such 
is  believed  to  be  the  English  rule.^*' 

3  Falls  V.  Railway  Co.,  97  Cal.  114,  31  Pac.  901. 

*  Illinois  Cent.  R.  Co.  v.  Hobbs,  58  111.  App.  130;  Wabash,  St. 
L.  iS:  P.  Ry.  Co.  V.  Wolff,  13  111.  App.  437. 

5  A  railroad  company  is  only  required  to  use  ordinary  and  rea- 
sonal)le  care  in  lighting  its  station  platform.  Hiatt  v.  Railroad  Co. 
(Iowa)  m  N.  W.  7G(J. 

c  (JnniliTman  v.  Railway  Co..  58  Mo.  App.  370. 

7  Skottowe  V.  Railroad  Co.,  22  Or.  430,  30  Pac.  222. 

8  A  railroad  company  is  held  to  the  liij^hest  dejjree  of  care  in  re- 

'••  See  note  9  on  following  page. 
1"  See  note  10  on  following  page. 

(101) 


§    47  CARRIERS   OF  PASSENGERS.  (Ch.    3 

On  the  other  hand,  the  highest  practicable  degree  of 
care  lias  been  exacted  of  carrier^,  even  as  to  their  sta- 
tional  facilities,  by  the  conrts  of  last  resort  in  Mich- 
igan,^ ^  Texas,'-  and  Kentucky. '" 

The  supreme  judicial  court  of  Massachusetts,  which 
is  very  rarely  under  the  necessity  of  reconsidering  its 
opinions,  has  wavered  on  this  question,  but  its  latest 
utterance  is  in  favor  of  the  highest  degree  of  care. 
"This  rule  [requiring  the  highest  care]  is  held  not  only 
in  our  own  state  and  in  England,  but  all  over  the  Unit- 
ed States.  It  applies  not  only  to  carriers  who  use 
steam  railroads,  but  to  those  who  use  horse  railroads, 
stage  coaches,  steamboats,  and  sailing  vessels.     It  ap- 

spect  to  the  condition  and  management  of  its  engines  and  cars,  for 
negligence  in  that  respect  involves  extreme  peril  to  passengers, 
against  which  they  cannot  protect  themselves.  As  to  the  safety  of 
stations,  temporary  or  permanent,  the  railroad  company  is  bound 
to  the  exercise  of  only  ordinary  care  and  prudence,  in  view  of  thi^ 
situation  and  existing  circumstances.  Conroy  v.  Railway  Co  (Wis  i 
70  N.  W.  486. 

»  Taylor  v.  Pennsylvania  Co..  50  Fed.  755. 

10  Paruaby  v.  Canal  Co.,  11  Adol.  &  E.  223,  cited  with  approval  in 
Gallin  v.  Railway  Co.,  L.  R.  10  Q.  B.  212. 

11  Cole  V.   Railway  Co.,   81   Mich.    156,  45  N.   W.   983.    folio  win- 
Cross  V.  Railway  Co.,  69  Mich.  363,  37  N.  W.  361.     An  early  Michi- 
gan case  apparently  holds  to  the  contrary.    Michigan  Cent.  R.  Co  v 
Coleiimn.  28  Mich.  440. 

12  Gulf,  C.  &  S.  F.  R.  Co.  V.  Butcher,  83  Tex.  309,  316.  18  S  W 
583.  A  carrier  is  required  to  exercise  the  highest  degree  of  care  in 
furnishmg  appliances  at  destination  to  enable  passengers  to  alight  in 
Sivfety.  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Kennedy  (Tex.  Civ.  App.)  35 
S.  W  .  335. 

13  Louisville  Ry.  Co.  v.  Park,  96  Ky.  580,  29  S.  W.  455.  A  street 
railroad  is  bound  to  exercise  the  highest  degree  of  care  to  -et  the 
steps  of  its  street  cars  in  a  safe  condition  for  alighting,  and  is  bound 
to  exercise  more  than  ordinary  care  in  this  respect 

(102) 


Ch.   o)  DUTY    AS    TO    STATIONAL    FACILITIES.  §    47 

plies  at  all  times  when,  and  to  all  places  where,  the 
parties  are  in  the  relation  to  each  other  of  passenger 
and  carrier,  and  it  inclndes  attention  to  all  matters 
which  pertain  to  the  business  of  carryinj>-  the  passen- 
ger." "Difficulty  in  the  application  of  the  principle 
has  sometimes  come  from  an  improper  interpretation 
of  the  expressions  'utmost  care  and  diligence,'  'most  ex- 
act care,'  and  the  like.  These  do  not  nuan  the  utmost 
care  and  diligence  which  men  are  capable  of  exercis- 
ing. They  mean  the  utmost  care  consistent  with  the 
nature  of  the  carrier's  undertaking,  and  with  a  due  re- 
gard for  all  other  matters  which  ought  to  be  consid- 
ered in  conducting  the  business.  Among  these  are 
the  speed  which  is  desirable,  the  prices  which  passen- 
gers can  afford  to  pay,  the  necessary  cost  of  different 
devices  and  provisions  for  safety,  and  the  relative  risk 
of  injury  from  different  possible  causes  of  it.  With 
this  interpretation  of  the  rule,  the  application  of  it  is 
easy.  As  applied  to  every  detail,  the  rule  is  the  same. 
The  degree  of  care  to  be  used  is  the  highest;  that  is,  in 
reference  to  each  particular  it  is  the  highest  which  can 
be  exercised  in  that  particular,  with  a  reasonable  re- 
gard to  the  nature  of  the  undertaking  and  the  require- 
ments of  the  business  in  all  other  particulars."  '* 

14  Dodge  v.  Steamboat  Co.,  148  Mass.  21<J,  19  N.  E.  373.  In  this 
case  it  was  held  that  a  steamboat  company  owes  to  a  passenger  as 
high  a  degree  of  care  after  he  has  left  llif  steamer,  and  is  ont  upon 
the  slip,  as  it  does  while  he  remains  on  board  the  vessel.  In  More- 
land  V.  Railroad,  141  Mass.  31.  6  N.  E.  L'25,  the  same  court  said: 
"Tlie  degree  of  care  is  not  fixed  solelj-  by  the  relation  of  carrier-  and 
passenger;  it  is  measured  by  the  consequences  which  may  follow 
the  want  of  care.  A  railroad  company  is  held  to  the  higliest  de- 
gree of  care  in  respect  to  the  condition  and  management  of  its  en- 

(103) 


§    48  CARRIERS   OF  PASSENGERS.  (Ch.   3 

The  siiprome  court  of  Indiana  seems  to  be  on  both 
sides  of  tliis  question/'^  while  the  supreme  court  of 
Georgia  holds  that  a  railroad  conipauv  is  bound  to  ex- 
traordinary diligence  as  to  duties  directly  involving 
the  passenger's  safety  at  the  station,  but  in  those  in- 
volving his  comfort  and  convenience  only  to  ordinary 
diliiience.^** 


'&^ 


§  48.     DEFECTS  IN  STATION  BUILDINGS. 

An  examination  of  the  decided  cases  shows  that,  so 
far  as  the  construction  and  maintenance  of  station 
buildings  is  concerned,  the  courts  certainly  have  made 
no  very  stringent  application  of  the  rule  requiring  the 
highest  degree  of  care.  Where  a  passenger  entering 
a  station  suddenly  and  rudely  pushes  a  swinging  door 
in  the  face  of  a  passenger  about  to  leave,  the  company 
cannot  be  convicted  of  negligence  because  the  door  is 
not  of  glass  above  the  middle  rail,  so  that  persons  ap- 
proaching the  door  can  see  each  other.  Neither  is  the 
presence  of  a  small  screw  eye  on  the  inner  surface  of 

gines  and  cars,  because  negligence  in  that  respect  involves  extreme 
peril  to  passengers,  against  which  they  cannot  protect  themselves. 
It  would  not  act  reasonably  if  it  did  not  exercise  greater  care  in 
equipping  and  running  its  trains  than  in  regard  to  the  condition  of 
its  station  grouuds."  This  was  an  action  for  personal  injuries  sus- 
tained by  a  passenger  in  stepping  on  some  loose  shingles  in  the  sta- 
tion grounds  while  on  his  way  from  the  train  to  the  highway,  and 
it  was  held  error  to  charge  that  plaintiff  is  entitled  to  all  the'  care 
which  human  foresight  can  furnish. 

15  Compare  Pennsylvania  Co.  v.  Marion,  104  Ind.  239.  3  N.  E  874 
and  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Lucas,  liy  lud.  583  21  N  E 
i)i>s.  '  '     ' 

le  Central  R.  &  B.  Co.  v.  I'tMiy.  58  Ga.  4(J1. 
(104) 


Ch.   3)  DUTY    AS    TO    STATIONAL    FACILITIES.  §    48 

the  door,  where  it  can  come  in  contact  with  a  person's 
head,  evidence  of  negligence.'  The  fact  that  a  stair- 
way at  a  railroad  station  is  constrncted  with  a  strip  of 
brass  at  the  edge  of  each  step,  that  these  brass  strips 
have  become  worn  and  slippery  from  constant  use,  and 
that  there  is  no  hand  rail  to  the  stairway,  is  not  snffi- 
cient  evidence  of  negligence  to  go  to  the  jury  in  an 
action  by  a  passenger,  who  slipped  on  the  stairway, 
where  it  appears  that  brass  strips  are  the  ones  gener- 
ally in  nse  on  stairways,  though  a  builder  testifies  that 
leaden  strips  would  have  been  safer  than  the  brass 
ones,  because  less  slipijery.- 

But  in  a  recent  case  the  absence  of  a  hand  rail  on  a 
stairway  at  a  station  was  held  negligence,  rendering 

§  48.  1  Graeflt"  v.  Railroad  Co.,  161  Pa.  St.  230,  28  Atl.  1107.  An 
illiterate  person,  while  waiting  at  a  station  to  take  a  train,  inquired 
of  a  stranger  on  the  platform  where  he  could  find  a  urinary.  He 
was  directed  to  go  to  the  right,  did  so,  and  found  two  doors,  upon 
one  of  which  was  printed  the  words,  "For  gentlemen,"  and  upon 
the  other  the  words,  "Lamp  room."  Being  in  a  hurry,  and  unable  to 
read,  he  opened  the  wrong  door,  and  fell  down  some  steps,  sus- 
taining serious  injuries.  Held,  in  the  absence  of  evidence  as  to  the 
character  of  the  steps  doAvn  which  plaintiff  fell,  or  as  to  the  state  in 
which  the  door  of  the  lamp  room  was  ordinarily  kept,  that  the 
judge  was  justified  in  nonsuiting  plaintiff,  on  the  ground  that  there 
was  no  evidence  of  negligence  on  the  part  of  the  company.  Toomoy 
V.  Railway  Co.,  3  C.  B.  (N.  S.)  146. 

2  Crafter  v.  Railway  Co.,  L.  R.  1  C.  P.  300.  It  was  said:  "The 
lins'  must  be  drawn  in  these  cases  between  suggestions  of  possible 
precautions  and  evidence  of  actual  negligence  such  as  ought  reason- 
ably and  properly  to  be  left  to  the  jury."  In  Foley  v.  Railway  Co., 
8U  Hun,  606.  34  N.  Y.  Supp.  1050,  it  was  held  that  an  elevated  rail- 
w:iy  company  is  not  liable  for  injuries  caused  by  the  defective  con- 
dition of  the  rubber  covering  its  stairs,  where  the  defect  did  not  ex- 
ist long  enough  before  the  accident  to  charge  the  company  witli 
knowledge  of  its  existence, 

(105) 


§    48  CARRIERS  OF  PASSENGERS.  (Ch.  3 

the  coinpaiiv  liable  for  the  death  of  one  who  resorted 
to  the  station  to  bnv  a  ticket,  and  who  was  killed  by 
fallinii'  from  the  stairway.^  So  the  existence  of  a  hole 
in  the  floor  of  a  toilet  room  at  a  station  is  evidence  of 
nej^lijience  in  an  action  by  a  passenger  who  had  occa- 
sion to  nse  the  toilet  room  while  waiting  for  a  train.* 
And  any  obstrnction  on  a  railroad  station,  placed  or 
permitted  to  exist  there,  which  renders  the  approach 
to  the  station  dangerous,  is  negligence.  Hence  to  per- 
mit a  stairway  at  a  station,  nsed  by  all  passengers,  to 
be  obstructed  by  an  employe  in  such  a  manner  that  a 
passenger  stumbles  over  the  obstruction,  will  warrant 
a  jury  in  finding  negligence.^  It  has  also  been  held 
tliat  the  failure  to  rebuild  a  depot  for  more  than  five 
months  after  its  destruction  by  fire,  thus  compelling- 
passengers  to  board  trains  as  best  they  can,  without 
any  stational  facilities,  warrants  the  jury  in  finding 
the  company  negligent,  and  in  holding  it  liable  in 
damages  to  a  female  passenger  who  was  injured  while 
attempting  to  board  a  train,  the  lowest  car  step  of 
which  was  over  30  inches  from  the  ground."^ 

8  Uilmore  v.  Railroad  Co.,  154  Pa.  yt.  375,  25  Atl.  774. 

*  Jordan  v.  Railroad  Co..  105  Mass.  34(5.  43  N.  E.  111.  So  a  rail- 
road company  is  guilty  of  negligence  in  leaving  a  hole  in  the  floor 
of  the  depot,  where  its  passengers  are  accustomed  to  alight  from 
its  cars,  thus  rendering  the  landing  unsafe.  Liscomb  v.  Transporta- 
tion Co.,  6  Lans.  (N.  Y.)  75. 

5  Lycett  V.  li.iilway  Co..  12  App.  Div.  326,  42  N.  Y.  Supp.  431.  The 
fact  that  a  railroad  company  does  not  keep  its  central  entrance  for 
passengers  to  its  station  free  from  the  violent  acts  of  its  own  serv- 
ants, dangerous  to  persons  entering  for  legitimate  purposes,  war- 
rants a  finding  of  negligent  management.  Gray  v.  Railroad  (Mass  > 
4G  N.  E.  3U7. 

s  Eichorn  v.  Railway  Co.,  130  Mo.  575,  32  S.  W.  993. 
(10(5) 


Cil.   3)  DUTi'    AS    TO    STATIONAL    FACILITIES.  §    -ii) 

g  49.     STATION   PLATFORMS. 

A  carrier  of  passengers  owes  to  a  passeniier  ap- 
proaching; or  leaving  its  trains  the  duty  of  keeping  its 
station  platform  in  a  reasonably  safe  condition  for 
convenient  use;  and  a  passenger,  when  leaving  or  ap- 
proaching a  train,  has  a  right  to  assume,  in  the  ab- 
sence of  information  to  the  contrary,  that  the  platform 
is  in  such  reasonably  safe  condition.^  But  a  railroad 
company  fulfills  its  duty  when  it  furnishes  a  platform 
that  can  be  used  without  danger  by  a  passenger  exer- 
cising ordinary  care.  It  is  not  bound,  for  example,  to 
furnish  a  platform  from  which  passengers  can  safely 
board  its  trains  while  in  motion.^  Nor  is  it  liable  to  a 
passenger  who,  failing  to  use  ordinary  care,  does  not 
observe  a  descent  of  nine  inches  from  one  portion  of 
the  platform  to  the  other,  and  who  falls  by  reason 
thereof.^ 

Care  must,  of  course,  be  exercised  to  keep  the  plat- 
form itself  free  from  defects.  Thus  it  has  been  liehl 
negligence  per  se  to  permit  a  hole  eight  inches  wide  and 
six  feet  long  to  remain  for  four  days,  after  knowledge 

§  49.  1  Fullerton  v.  Fordyce,  121  Mo.  1.  25  S.  W.  587;  Pennsylva- 
nia Co.  V.  Marlon,  123  Ind.  415,  23  N.  E.  973. 

■^  Chicago  &  N.  W.  R.  Co.  v.  Scates,  90  111.  .1S6. 

8  Graham  v.  Railroad  Co.,  139  Pa.  St.  149, 21  Atl.  l.")l.  A  railroad  com- 
pany is  not  liable  to  a  passenger  who,  on  his  way  to  a  train  in 
broad  daylight,  and  while  crossing  an  intervening  track,  strikes  his 
toe  against  a  rail,  and  falls  to  the  ground,  where  the  track  and  the 
rail  are  plainly  to  be  seen,  by  any  one  who  looks  where  he  walks, 
and  are  constructed  in  the  usual  manner.  Potter  v.  Railroad  Co..  92 
^^  C.  541. 

(1U7) 


§    49  CARRIERS   OF  PASSENGERS.  (Ch.    3 

of  its  condition  by  the  station  a^ent,  in  the  floor  of  a 
platform  commonly  used  by  passengers.*  But  the 
mere  existence  of  a  hole,  barely  large  enough  to  admit 
the  heel  of  a  man's  shoe,  is  not  negligence  as  matter  of 
law;  the  question  is  one  of  fact  for  the  jury.^  Nor  is 
the  arrangement  of  the  platform  in  such  a  manner  as 
to  make  it  possible  for  horses  to  come  upon  it  evidence 
of  negligence;  and  hence  a  railroad  company  is  not 
liable  for  injury  to  a  passenger  while  on  its  station 
platform,  who  was  struck  by  a  runaway  horse,  not  in 
defendant's  care  or  use,  and  not  led  to  run  away  by 
anything  done  by  defendant.® 

If  the  platform  is  elevated  above  the  adjacent 
ground,  the  duty  exists  of  constructing  guard  rails  for 
the  safety  of  passengers  who  may  be  on  the  platform 
in  the  nighttime.  Thus  the  failure  to  erect  a  guard 
rail  along  the  sides  of  the  platform  of  an  elevated  rail- 
road platform  justifies  the  jury  in  finding  negligence, 
which  will  render  the  company  liable  to  a  passenger 
vrho  fell  from  the  platform  to  the  ground,  31  feet  be- 
low, while  searching  for  a  urinal  in  the  nighttime.' 

Obstructions  on  the  platform  which  are  not  in  the 

*  Fullerton  v.  Fordyce,  121  Mo.  1,  25  S.  W.  587. 

6  James  v.  Knilway  Co.,  107  Mo.  480,  18  S.  W.  31.  The  fact  th.-U 
one  of  the  plauks  is  a  few  inches  shorter  than  the  other  is  not 
evidence  of  negligence  which  will  render  the  company  liable  to  a 
passenger,  who  in  broad  daylight  stepped  into  a  hole  caused  by 
the  short  plank.    Stokes  v.  Railroad  Co..  107  N.  C.  178,  11  S.  E.  991. 

8  Brooks  V.  Railroad  Co.  (Mass.)  40  N.  E.  566. 

7  Jarvis  V.  Railroad  Co.  (City  Ct.  N.  Y.)  16  N.  Y.  Supp.  96,  affirmed 
In  133  N.  Y.  623,  30  N.  E.  1150.  The  same  ruling  was  made  with 
reference  to  a  platform  about  three  feet  above  the  ground,  in  Mis- 
souri I'ac.  Ry.  Co.  v.  Neiswanger,  41  Kan.  621,  21  Pac  582  ' 

(108) 


Ch.   3)  DUTY    AS    TO    STATIONAL   FACILITIES.  §    49 

nature  of  concealed  traps  or  pitfalls  are  not  defects  for 
which  the  company  is  liable.  Thus  a  railroad  com- 
pany is  not  giiiltY  of  negligence  in  placing  a  weighing 
machine,  of  the  usual  description,  on  its  platform,  near 
the  luggage  counter,  for  the  purpose  of  weighing  lug- 
gage, and  is  therefore  not  responsible  for  injuries  sus- 
tained by  one  who  in  broad  daylight  was  pressed  by  a 
crowd  of  passengers  against  the  machine,  caught  his 
foot  in  it,  and  fell  oyer  it.®  Neither  is  a  railroad  com- 
pany guilty  of  negligence  in  depositing  freight  on  the 
platform  at  a  flag  station,  and  is  not  liable  to  a  pas- 
senger, who  in  broad  daylight  stumbles  oyer  a  pack- 
age while  on  his  way  to  the  train.**  And  a  passenger 
who  stumbles  oyer  the  feet  of  a  baggage  master  while 
he  is  remoying  baggage  from  the  car  in  the  ordinary 
manner,  when  10  feet  in  widtli  of  the  platform  is  not  ob- 
structed by  him,  cannot  recoyer,  since  there  is  no  negli- 
gence on  the  baggage  master's  part.^°  But  a  box  con- 
taining signal  levers,  projecting  about  two  inches  above 
the  level  of  the  platform,  is  a  concealed  defect  as  to  a 
passenger  going  over  the  platform  with  a  crowd  of 
other  passengers,  and  a  jury  is  warranted  in  holding 
the  company  liable  to  the  passenger  for  injuries  sus- 
tained in  stumbling  over  the  projection  in  the  crowd.^' 

8  Coruman  v.  Railway  Co.,  4  Hurl.  &  N.  781;    Blackman  v.  Rail- 
■nay  Co.,  17  Wkly.  Kcp.  7(;!). 
»  Falls  V.  Railroad  Co.,  97  Cal.  114,  31  Pac.  901. 

10  Connor  v.  Railroad  (N.  H.)  30  Atl.  1121.  A  railway  company  is 
not  chargeable  with  negligence  because  it  leaves  a  baggage  truck  on 
its  platform,  so  that  a  passenger  endeavoring  to  board  a  moving 
train  stumbles  against  it,  and  is  injured.  Haldan  v.  Railway  Co.,  30 
U.  C.  C.  I'.  89. 

11  Sturges  V.  Railway  Co.,  00  J.  P.  (Kug.)  -78. 

(lO:)) 


§    49  CARRIERS   OP  PASSENGERS.  (Cll.    3 

The  duty  of  care  in  respect  to  its  station  platforms 
does  not  ahvaj's  end  with  that  portion  d^sioned  for  the 
use  of  passen«^ers.  The  fact  that  a  portion  of  a  sta- 
tion platform  was  originally  designed  for  freight  and 
baggage  use  does  not  render  a  passenger  thereon  a 
trespasser,  where  the  whole  forms  one  continuous 
platform,  and  has  been  uniformly  used  for  the  accom- 
modation of  passengers  without  objection  by  the  rail- 
road company/^  A  railroad  company  having  a  tele- 
graph office  in  one  of  its  stations  for  the  use  of  the 
public  is  responsible  to  one  of  its  passengers,  who  is 
injured  solely  because  of  the  company's  negligence 
in  failing  to  keep  in  proper  condition  the  structure  or 
platform  erected  by  it,  over  which  the  passenger,  in 
alighting  from  the  cars,  must  pass  to  reach  the  tele- 
graph office.'^  A  railway  company  which  maintains  a 
stairway  leading  from  its  depot  to  a  platform  owned 
and  constructed  by  an  express  company  must  take 
proper  steps  to  guard  passengers  from  taking  that 
way  to  leave  its  premises,  if  the  way  is  unsafe;  and, 
in  the  absence  of  any  precautions,  it  is  liable  to  a  pas- 
senger, a  stranger,  who  descended  the  stairway,  and, 
thinking  the  lower  platform  of  the  express  company 

12  Waller  v.  Railway  Co.,  59  Mo.  App.  410.  But  where  a  railroad 
company  has  provided  a  well-lighted  and  convenient  platform  for 
passengers  on  one  side  of  its  station  building,  about  two  feet  lower 
than  the  approaches  leading  to  a  freight  platform  on  the  other  side 
of  the  building,  with  no  steps  between  the  two  platforms,  a  passenger 
waiting  for  a  train,  and  knowing  these  facts,  goes  on  the  freight  plat- 
form at  his  own  risk,  and  cannot  recover  for  injuries  sustained  by 
falling  into  an  unguarded  pit  on  the  freight  platform.  Gundermaix 
V.  Railway  Co.,  58  Mo.  Apj).  370. 

13  cn^sMuan  V.  Railroad  Co.,  <J  lluu,  G18. 
(110) 


Ch.   3)  DUTV    AS    TO    STATIOXAL    FACILITIES.  §   50 

to  be  on  a  level  with  the  street,  stepped  therefrom,  and 
fell  four  feet  to  the  liround.^* 


§  50.     SAME— ADJUSTMENT      BETWEEN     PLATFORM 

AND  TRAINS. 

A  railroad  company  which  receives  its  passengers 
from  a  space  between  parallel  tracks  is  bound  to  pro- 
vide such  safeguards  as  will  protect  the  passenger,  in 
the  exercise  of  ordinary  care,  from  injury  from  pass- 
ing trains.^  Thus  it  is  negligence  to  construct,  for  the 
use  of  passengers,  a  platform  only  five  feet  wide,  leav- 
ing only  a  little  over  two  feet  of  clear  space  when  pas- 
senger trains  going  in  opposite  directions  meet  at  the 
station,  and  a  passenger  on  the  platform,  and  about  to 
take  a  train,  may  recover  for  injuries  sustained  in  be- 
ing struck  by  a  train  on  the  other  track.-  It  has  even 
been  held  that  the  fact  that  an  intending  passenger 
was  struck  by  a  passing  train  which  projected  over  the 

14  Beard  v.  Railroad  Co.,  48  Vt.  101.  "The  open  stairs  on  the  mar- 
gin of  the  platform  led  the  plaintiff,  withoiit  fault  on  her  part,  to 
the  point  of  harm.  Thej-  baited  her  into  the  unseen  trap,— a  trap 
well  known  to  the  defendant.  They  were  the  alluring  and  delud- 
ing: opening  to  the  fatal  pitfall.  The  fact  that  the  bottom  of  tlie 
pitfall  on  which  plaintiff  landed,  and  thereby  received  the  hurt, 
was  beyond  the  line  of  ownership  of  defendant,  neither  relieves 
the  duty  nor  mitigates  the  fault  of  the  defendant." 

§  50.    1  Union  P.  Ry.  Co.  v.  Sue,  25  Neb.  772,  41  N.  W.  SOI. 

2  Chicago  &  A.  R.  Co.  v.  Wilson,  63  111.  1G7.  But  where  the  plat- 
form is  of  sufficient  width  to  afford  abundant  room  for  safety,  it  is 
not  negligence  to  so  build  it  that  the  edge  of  the  platform  cannot  be 
occupied  in  safety  as  a  standing  place  while  a  train  is  passing. 
Chicago,  B.  &  Q.  R.  Co.  y.  Mahara,  47  111.  App.  208. 

(Ill) 


§    51  CARRIERS   OF  PASSENGERS.  (Ch.    3 

platform  from  one  to  three  inches  is  sufficient  evidence 
of  negligence  to  take  the  case  to  the  jurj.^ 

The  bare  fact  that,  owing  to  a  curve  in  an  elevated 
railway  track,  an  opening  eight  inches  wide  exists  be- 
tween the  station  platform  and  the  ends  of  the  car 
steps,  is  not  evidence  of  negligence,  since  such  an 
opening  is  the  necessary  and  inevitable  result  of  the 
practical  operation  of  the  road.  And  since  the  rail- 
way follows  the  street,  and  must  reproduce  its  curves, 
and  since  the  locaiitv  of  anv  station  is  determined  bv 
public  convenience,  the  presence  of  the  curve,  and  the 
location  of  the  station  upon  it,  is  not  negligence.*  ^o 
where  station  premises  are  well  lighted,  it  is  not  the 
carrier's  duty  to  bring  home  notice  to  each  passenger 
of  an  open  space  about  a  foot  wide  between  the  car 
steps  and  the  station  platform;  but  a  general  warn- 
ing, such  as  in  the  ordinary  course  of  things  would  be 
likely  to  reach  all  the  passengers  on  their  way  out,  is 
sufficient.' 

§  51.     APPBOACHES. 

The  duty  of  a  railroad  company  as  a  carrier  of  pas- 
sengers does  not  end  when  the  passenger  is  safely  car- 
ried to  the  place  of  his  destination.  The  company 
must  also  exercise  care  to  provide  safe  means  of  ae- 

8  Dobiecki  V.  Sharp,  88  N.  Y.  1203.    s6  held  where  passing  cars  ex- 
tend 18  inches  beyond  edge  of  platform.     Houston  &  T.  C.  Rv.  Co 
V.  Reason,  61  Tex.  613. 

*  Ryan  V.  Railway  Co.,  121  N.  Y.  126.  23  X.  E.  1131,  reversing  49 
Hun,  60U,  1  N.  Y.  Supp.  899;  Fox  v.  City  of  New  York.  70  Hun.  181. 
iJ4  X.  Y.  Supp.  43.    But  see  post,  §  54. 

«»  Langin  v.  Brooklyn  Bridge,  10  App.  Div.  G29,  42  N.  Y.  Supp.  353. 
(112) 


Ch.   3  DUTY    AS    TO    STATIONAL    FACILITIES.  §    51 

cess  to  and  from  its  stations  for  tlie  use  of  passengers, 
and  passengers  have  tlie  riglit  to  assume  that  tlie 
means  of  access  provided  are  reasonably  safe.'     It  is 
the  duty  of  a  railroad  company  to  furnish  passengers 
a  safe  and  convenient  passage  from  its  depot  to  the 
highway,'  and  if  it  fails  to  do  so,  and  passengers  are  in 
consequence  compelled  to  walk  along  the  track  to 
reach  the  highway,  the   company   is  liable   for  the 
death  of  a  passenger  who  fell  into  a  cattle  guard  cov- 
ered with  snow,  and  who  was  unable  to  extricate  her- 
self before  she  was  run  into  by  an  engine.^     It  is  neg- 
ligence in  a  railroad  company  to  leave  unguarded  on  a 
dark  night  a  hole  in  a  passageway  at  a  railroad  station 
likely  to  be  employed  by  a  passenger  going  to  and 
from  the  train,"  and  a  hole  so  near  the  walk  used  by 
the  public  in  going  to  and  from  the  depot  to  the  cars 
that  a  man,  in  the  ordinary  aberrations  of  travel,  may 
fall  into  it  in  the  nighttime,  should  be  guarded  by  the 
company/     To  permit  a  bridge  over  a  public  street  in 
the  immediate  vicinity  of  the  depot  to  be  uncovered 
and  unprotected  while  undergoing  repairs   is  negli- 
gence on  the  part  of  the  company,  which  will  render  it 
liable  for  injuries  to  a  passenger  who  in  the  nighttime, 
on  his  way  to  a  train,  fell  through  the  bridge/     A  rail- 
road company  which  sells  tickets  good  over  a  connect- 

§  51.    1  Delaware,  L.  &  \Y.  R.  Co.  v.  Trautwein.  52  N.  J.  Law,  169, 
lU  All.  178;   Burnham  v.  Railway  Co.,  91  Mich.  523.  52  N.  W.  14. 
^  lliilbcrt  V.  Railroad  Co..  40  X.  Y.  145. 

8  Hoffman  v.  Railroad  Co.,  75  N.  Y.  605,  affirming  13  Hun,  589. 
4  Green  v.  I'ennsylvania  Co.,  36  Fed.  66. 
6  Cross  V.  Railway  Co.,  69  Mich.  363,  37  X.  W.  361. 
«  Chicago  &  N.  ^Y.  R.  Co.  v.  Fillmore,  57  111.  265. 

V.    1  KKT.CAR.PAS. 8  (113) 


§    51  CARRIi:i{S   OF   PASSENGERS.  (^Ch.    3 

inji"  line  of  steamers,  and  Avliieli  requires  its  passengers 
to  disembark  at  its  depot  40  rods  from  the  steamer,  con- 
tinues to  be  liable  as  a  common  carrier  until,  in  the  or- 
dinary course  of  their  passage  over  the  wharf,  the  pas- 
senji'ers  reach  the  point  Avliere  the  liability  of  the 
steamboat  company  commences."  But  the  fact  that 
gravel  and  small  pieces  of  wood  were  on  a  sidewalk  in 

7  Knight  V.  Railroad  Co.,  5G  Me.  L'34.  A  railroad  company  which 
constructs  and  maintains  a  way.  in  part  for  its  own  benefit  and 
profit,  to  be  used  by  all  who,  for  purposes  of  business,  desire  to 
pass  from  the  cars  to  its  wharf  boat,  moored  at  an  established  land- 
ing in  a  public  navigable  river,  is  bound  to  exercise  ordinary  care 
and  prudence  to  keep  the  way  in  repair  for  the  safety  of  those  who 
use  it  for  the  puri:ose  for  which  it  has  been  appropriated.  Bennett  v. 
Railj-oad  Co.,  102  U.  S.  577.  It  is  a  question  of  fact  for  the  jury 
wlu'thor  a  railroad  bridge  229  feet  from  the  depot,  and  20  feet  from  a 
water  tank,  and  planked  between  the  rails,  is  a  part  of  the  station 
grounds,  so  as  to  render  the  company  liable  for  the  death  of  a  drover. 
^^■ho.  while  the  train  Avas  stopping  at  the  water  tank,  went  on  the 
bridge  towards  the  engine  to  look  after  his  cattle,  and  who  in  the  dusk 
stepped  over  the  edge  of  the  bridge,  which  was  without  railing  or  pro- 
tection. Illinois  Cent.  R.  Uo.  v.  Foley,  3  C.  C.  A.  589,  5S  Fed.  459.  One 
who  was  injiu-ed  while  passing  over  a  foot  walk  on  a  public  street. 
about  40  feet  from  a  bridge  constructed  by  a  railroad  company,  and 
leading  to  its  depot,  has  the  burden  of  showing  that  the  walk  was  con- 
structed by  the  company,  and  under  its  possession  and  control,  as 
one  of  the  approaches  to  its  station.  Quimby  v.  Railroad  Co.,  69 
Me.  840.  A  juiy  is  warranted  in  rinding  that  a  passageway  from  a 
wailing  room  to  its  railroad  tracks,  so  narrow  that  a  passenger 
walking  along  it  is  thrown  therefrom  by  the  sudden  turning  around 
of  a  person  in  front  of  her,  is  not  a  reasonably  safe  structure. 
Redner  v.  Railway  Co.,  73  Hun,  562,  26  N.  Y.  Supp.  1050.  Gen.  St. 
Conn.  §  3.J31,  requires  railroad  companies  to  maintain  a  safe  ap- 
proach for  carriages  to  all  its  passenger  stations  from  contiguous  or 
neighboring  highways,  and  prohibits  the  obstruction  of  such  ap- 
proaches for  a  reasonable  time  before  and  after  the  departure  of 
passenger  trains. 

(114) 


Ch.    3)  DUTY    AS    TO    STATIONAL    FACILITIES.  §    52 

front  of  a  station  bnilding,  the  roof  of  which  was  un- 
dergoing repairs,  is  not  evidence  of  negligence,  in  the 
absence  of  evidence  that  they  had  been  there  an  un- 
reasonable length  of  time.® 

To  stock  drovers  and  others  accepted  as  passengers 
on  freight  trains  the  compam^  owes  the  duty  of  exer- 
cising proper  diligence  to  provide  them  with  safe  ap- 
proaches to  all  parts  of  its  station  grounds  where  the 
reasonable  prosecution  of  their  business  may  require 
them  to  go;  and  when  a  drover,  in  going  from  the  de- 
pot to  the  stock  pen;  where  his  train  is  being  made  up, 
is  compelled  to  cross  a  high  trestle  bridge,  the  com- 
pany owes  him  the  dutj^  of  exercising  care  to  make  the 
bridge  reasonably  safe  to  cross." 

§  52.     OWNERSHIP  BY  THIRD  PERSONS. 

The  ownership  by  third  persons  of  any  portion  of 
the  station  grounds  or  approaches  used  by  a  common 
carrier  in  receiving  and  dischargiug  passengers  will 
not  affect  his  liability  as  such.  The  duty  of  a  carrier 
to  exercise  a  proper  degree  of  care  to  keep  approaches 
to  its  station  grounds  in  repair  is  not  affected  by  the 
fact  that  it  has  constructed  such  apjH'oaches  over  land 

8  O'Reilly  v.  Railroad  Co.,  4  A  pp.  Div.  139.  38  N.  Y.  Supp.  779. 

9  Texas  &  P.  Ry.  Co.  v.  Huduian,  8  Tex.  Civ.  App.  309,  28  S.  W^ 
388.  But  see  Dillaye  v.  Railroad  Co.,  2  Alb.  Law  J.  35(5,  overrnlini,' 
5(J  Barb.  30,  wliore  it  was  held  that  the  conveyance  of  such  passen- 
gers as  succeed  in  getting  on  a  freight  train,  or  the  receipt  of  fare 
from  them,  cannot  be  justly  considered  as  a  general  invitation  to 
the  public  to  ride  in  that  way  at  their  pleasure,  nor  as  imposing  the 
duty  of  maliiiig  a  convenient  patli  or  mode  of  access  to  the  rear  car 
of  a  freight  train. 

(115) 


5    52  CARRIERS   OF  PASSENGERS.  (Cil.    3 

not  owned  by  it,  but  forming  part  of  a  highway/  A 
steamboat  company  which  lands  its  passengers  on  a 
wharf  not  owned  by  it  makes  such  wharf  a  part  of  its 
own  means  of  hmding,  and  is  liable  to  its  passengers 
the  same  as  if  it  owned  the  premises.^  A  carrier  by 
sea  who  employs  a  hulk  owned  by  other  persons  for 
the  purpose  of  embarking  passengers  on  his  steamer  is 
liable  for  injuries  sustained  by  a  passenger  by  reason 
of  a  hatchway  on  the  hulk  being  negligently  left  un- 
guarded, though  the  hulk  is  under  the  control  of  the 
owners,  and  not  of  the  carrier,  since  it  is  a  part  of  the 
means  of  transportation,  and  it  is  the  carrier's  duty  to 
use  reasonable  care  for  its  safety.*  Two  railroad  com- 
panies which  use  in  common  a  platform  extending 
from  the  station  house  of  one  of  them  to  that  of  the 
other,  and  over  which  their  passengers  may  be  expect- 
ed to  pass  in  going  from  one  station  to  the  other,  are 
bound  to  keep  it  in  safe  condition,  and  are  jointly  lia- 
ble for  injuries  resulting  from  their  failure  to  do  so.* 
The  fact  that  third  persons  have  trespassed  on  the  sta- 
tion grounds  of  a  railroad  company  does  not  excuse  its 
failure  to  keep  the  premises  in  reasonable  repair  for 
the  safety  of  its  passengers,  where  the  trespass  is  not 
accompanied  by  an  exclusive  possession  by  the  tres- 
passers.'    A  railroad  company  is  liable  for  injuries  to 

§  52.  1  Skottowe  V.  Railway  Co.,  22  Or.  480,  30  Pac.  222.  See, 
al.so,  post,  c.  2G,  as  to  connecting  and  loased  lines. 

2  Buddenberg  v.  Transportation  Co.,  108  Mo.  394,  18  S.  W,  970. 

8  John  V.  Bacon,  L.  R.  5  C.  P.  437. 

«  Lucas  V.  Pennsylvania  Co.,  120  Ind.  205,  21  N.  E.  972;  Louis- 
ville, N.  A.  &  C.  Ry.  Co.  v.  Lucas.  119  Ind.  583,  21  N.  E.  968. 

6  Gulf.  C.  &  S.  F.  Ry.  Co.  v.  Clonk,  9  Tex.  Civ.  App.  509  30  S.  W. 
(IKi) 


Ch.   3)  DUTY    AS    TO    STATIONAL    FACILITIES.  §    52 

a  passenger  sustained  b}-  reason  of  a  defect  in  a  plat- 
form leading  from  the  train  to  an  eating  house,  though 
the  platform  was  constructed  by  hotel  people,  and  had 
not  been  used  by  the  railroad  company  for  some  time, 
where  it  was  located  on  the  company's  right  of  way." 
But  where  a  railroad  company  leases  land  to  one  who 
erects  a  restaurant  and  eating  house  thereon,  the  fact 
that  such  restaurant  is  patronized  by  travelers  on  and 
employes  of  its  road  does  not  render  it  liable  for  the 
negligence  of  its  lessees  in  not  keeping  the  approaches 
in  good  order;  such  restaurant  not  being  used  by  it  as 
a  station  or  place  to  accommodate  travelers.  Those 
who  enter  the  eating  house  do  so  under  the  implied  in- 
vitation given  them  by  its  keeper  and  owner,  and  not 
upon  any  invitation  extended  them  by  the  railroad 
company;  and  in  such  case  the  tenant,  and  not  the 
landlord,  must  be  liable  for  any  injury  resulting  from 
defects  in  the  rented  premises.^ 

278.  Where  the  platform  at  a  station  is  too  high  to  be  convenient- 
ly reached,  and  some  cue  has  provided  a  plank  leadins?  up  to  the 
platform,  which  has  been  used  since  the  depot  was  built,  the  com- 
pany is  as  much  liable  for  injuries  arising  from  defects  in  the  plank 
as  if  it  had  set  up  and  maintained  the  dangerous  way.  Collins  v. 
Railway  Co.,  80  Mich.  390,  45  N.  W.  178.  A  railroad  company  is 
bound  to  exercise  due  care  to  keep  in  repair  a  bridi^'c  over  a  gully  on 
its  station  grounds,  used  by  passengers  on  leaving  the  grounds, 
though  the  bridge  has  been  erected  by  strangers  to  the  company. 
Chance  v.  Railway  Co.,  10  Mo.  App.  3.51. 

c  East  Tennessee,  V.  &  G.  R.  Co.  v.  Watson.  94  Ala.  G34.  10  Soutli. 
228:    Id.,  92  Ala.  320,  8  South.  770. 

t  Texas  &  P.  Ry.  Co.  v.  Mangum,  08  Tex.  342.  4  S.  W.  617. 

(117) 


§   53  CARRIERS   OF  PASSENGERS.  (Cll.    3 

§  53.     SNOW  AND  ICE. 

A  railroad  company  must  exercise  care  to  keep  its 
platform  free  from  ice  and  snow.^  While  it  is  not 
bound  to  keep  its  platform  in  such  a  condition  as  to 
make  it  impossible  for  any  passenger  to  slip,  it  should 
keep  the  platform  in  such  a  condition  that  a  person 
using-  ordinary  care,  which  people  use  when  not  ap- 
prised of  danger,  would  not  slip.  The  company  is 
bound  to  be  on  the  alert  during  cold  weather,  and  to 
see  whetlher  there  is  ice  upon  the  platform,  and  to  re- 
move or  make  it  safe  by  sanding  it  or  putting  ashes 
upon  it.'  The  unexplained  presence  of  a  strip  of  ice, 
nearly  an  inch  thick,  on  a  station  platform,  and  hav- 
ing the  appearance  of  having  been  there  for  some  time, 
is  evidence  of  negligence,  in  an  action  by  a  passenger, 
who  was  waiting  on  the  platform  for  the  arrival  of  a 
train,  and  who,  not  obseiwing  the  ice,  slipped  upon  it, 
and  fell,  sustaining  severe  injuries.^ 

The  same  principles  apply  to  ice  and  snow  on  car 
steps  and  platforms.  Thus,  in  an  action  for  injuries 
sustained  in  slipping  on  an  icy  car  step,  the  question 
whether  the  ice  has  been  permitted  to  remain  for  an 
unreasonable  length  of  time  is  for  the  jury,  where 
there  is  evidence  that  the  ice  was  there  the  day  before 
the  accident.* 

§  53.    1  Louisville  &  N.  R.  Co.  v.  Cockerel  (Ky.)  33  S.  W.  407. 

2  Weston  V.  Kailroad  Co.,  73  N.  Y.  .m").  affirming  42  N.  Y.  Super. 
Ct.  156;  Chicago  &  N.  W.  Ry.  Co.  v.  Smith.  59  111.  App.  212;  Tiiup- 
sou  V.  Railway  Co.,  52  Hun,  489,  5  N.  Y.  Supp.  684. 

3  Shepherd  v.  Railway  Co.  (1872)  25  Law  T.  (N.  S.)  879. 
<  Neslie  V.  Railway  Co.,  113  Pa.  St.  300,  6  Atl   7"^ 

(118) 


Ch.   3)  DUTY    AS    TO    STATIOXAL    FACILITIES.  §    54 


§  54.      LIGHTS. 

The  duty  to  exercise  care  to  provide  safe  platforms 
aiul  approaches  to  trains  and  stations  includes  the  du- 
ty of  properly  lighting  at  night  the  depots  and  ap- 
proaches to  and  from  the  trains.^  This  rule  is  violat- 
ed by  a  railroad  company,  which,  for  any  reason, 
leaves  one  or  more  coaches  of  a  passenger  train  out- 
side the  depot  yard  or  station  grounds  at  which  the 
train  stops,  thus  obstructing  at  night  lights  so  placed 
by  the  city  as  to  illuminate  both  sides  of  the  track  on 
which  the  train  stands."      But  when  the  place  is  a 

§  54.  1  Bueuemann  v.  Railway  Co.,  32  Minn.  390,  20  N.  W.  379; 
Reynolds  v.  Railway  Co.,  37  La.  Ann.  G94;  Texas  &  P.  Ry.  Co.  v. 
McKenzie,  2  Posey,  Unrep.  Cas.  (Tex.)  307;  Sargent  v.  Railway 
Co.,  114  Mo.  348,  21  S.  W.  823;  Fordyce  v.  Merrill,  49  Ark.  277,  .5 
S.  W.  329;  Groll  v.  Railroad  Co.,  51  Hun,  643,  4  N.  Y.  Supp.  80; 
Patten  v.  Railway  Co.,  32  Wis.  524. 

2  Moses  V.  Railroad  Co.,  39  La.  Ann.  649,  2  South.  567.  The  duty 
of  lighting  approaches  includes  the  duty  of  providing  sufficient  lights 
for  the  safety  of  passengers  going  to  and  from  eating  stations  at 
night.  Peniston  v.  Railroad  Co.,  34  La.  Ann.  777.  Where  there  Is 
evidence  that  a  passenger  was  injured  in  stepping  from  a  moving 
train  upon  an  unlighted  platform,  the  court  properly  submitted  to 
the  jury,  as  a  ground  of  recovery,  the  negligence  of  the  railroad 
company  In  failing  to  provide  proper  lights  for  the  accommodation 
of  its  passengers  in  leaving  the  cars  at  night,  although  no  witness 
testified  directly  that  the  lack  of  lights  contributed  to  the  injury, 
or  that  the  accident  would  not  have  occurred  had  the  platfoi-m 
been  properly  lighted.  "There  are,  perhaps,  but  few  of  us  who 
have  not  at  some  time,  while  walking  or  leap'ing  in  the  dark,  been 
di.sagreeably  surprised  by  striking  the  foundation  a  little  earlier 
or  a  little  later  than  we  expected,  and  have  fully  realized  that  the 
<!nnger  of  receiving  injury  under  such  circumstances  is  much  eu- 
huuced  by  not  being  provided  with  sufficient  lights,  and  it  was  not 

(nu) 


§    54  CARRIERS   OF   PASSENGERS.  (^Ch.    3 

coinitry  station,  without  municipal  government,  hav- 
ing neither  gas,  electric,  nor  outdoor  lights,  and  there 
are  indoor  lights  in  the  station  house,  the  company 
may  omit  outdoor  lights  in  conformity  to  the  rules  and 
practice  generally  in  use  by  other  prudently  conduct- 
ed companies.^ 

Especially  is  it  the  duty  of  the  company  to  provide 
lights  at  night,  wliere  for  any  reason  there  are  pitfalls 
or  obstructions  on  its  platform.  Thus,  where  an  ele- 
vated railroad  constructs  a  platform  on  a  curve,  so 
that  there  is  necessarily  a  space  14  inches  wide  be- 
tween the  car  steps  and  the  station  platform,  the  duty 
rests  on  it  to  light  the  unguarded  hole,  so  that  pas- 
sengers alighting  in  the  nighttime  may  see  and  avoid 
the  danger.*  Bringing  a  train  to  a  standstill  on  a 
dark  evening,  with  the  station  dimly  lighted,  at  a 
point  where  there  are  18  inches  or  2  feet  between  it  and 
the  platform,  coupled  with  the  fact  that  the  guard 
opened  the  door,  and  thus  impliedly  invited  plaintiff  to 
alight,  is  sufficient  evidence  of  negligence  to  take  the 

necessary  for  a  witness  to  tell  the  jury  this."    Eddy  v.  Still,  3  Tex 
Civ.  Api).  34G,  22  S.  W.  525. 

3  Ahiliaiiia  (J.  S.  II.  Co.  v.  Arnold.  84  Ala.  160,  4  South.  359.  A 
railroad  company  is  not  under  any  obligation  to  so  place  its  lights 
at  a  depot  as  to  enable  employes  on  freight  trains  to  discover  a 
drunken  person,  who,  during  the  nighttime,  lies  down  on  the  track 
near  the  depot.  Rozwadosfskie  v.  Railway  Co.,  1  Tex.  Civ.  App.  487. 
20  S.  W.  872. 

*  Boyce  v.  Railway  'Co.,  lis  N.  Y.  314.  23  N.  E.  304,  affirming  54  N. 
Y.  Super.  Ct.  28U,  Failure  to  light  a  platform  three  feet  above  the 
ground  is  negligence,  entitling  a  passenger  who  falls  from  the  plat- 
form in  the  dark  to  recover  for  Injuries  sustained.  Stafford  v.  Rail- 
road Co.,  22  Mo.  App.  333. 
(120)         . 


Cll.   G)  DUTY    AS    TO    STATIONAL    FACILITIES.  §    54 

case  to  the  jury.'  The  same  principle  applies  to  fer- 
ries. A  ferry  company  is  guilty  of  negligence  in  land- 
ing one  of  its  ferryboats  at  night  in  such  a  manner  as 
to  leave  on  open  space  between  the  boat  and  the  dock 
without  guards  or  lights,  and  it  is  liable  to  a  passen- 
ger who  falls  into  the  open  space  on  leaving  the  boat." 
So  while  a  railway  company  is  bound  to  provide  but 
one  safe  way  of  approach  to  and  egress  from  its  sta- 
tion, it  is  guilty  of  negligence  if  it  provides  no  means 
by  which  that  way  is  apparent  to  passengers  alighting 
in  the  nighttime,  aud  if  it  leaves  them  to  grope  their 
way  from  the  depot  platform  without  sufficient  light 
to  encounter  dangers  that  cannot  be  discovered.'^ 

The  duty  to  furnish  lights  at  night  rests  on  the  com- 
pany, not  only  on  the  arrival  and  departure  of  trains, 
but  for  a  reasonable  time  before  and  after  their  de- 
parture.^     What  is  a  reasonable  time  generally  de- 

»  Praeger  v.  Railway  Co.,  24  Law  T.  (N.  S.)  105.  Where  a  station 
platform  is  so  constructed  that  there  is  an  open  space  between  it 
and  the  steps  of  the  car,  it  is  a  question  for  the  jury  whether 
it  is  negligence  on  the  part  of  the  company  not  to  have  the  place  so 
lighted  that  a  passenger  leaving  the  car  in  a  crowd  can  see  the  open 
space.    Fox  v.  City  of  New  York,  .j  App.  Div.  :{49.  39  N.  Y.  Supp.  309. 

6  Holmes  v.  Railway  Co.,  5  Fed.  523;  Drake  v.  Town  of  Dart- 
mouth, 25  Nova  Scotia,  177. 

7  Texas  &  P.  Ry.  Co.  v.  Brown,  78  Tex.  397,  14  S.  W^  1034.  Where 
a  passenger  is  injured  in  the  evening,  by  falling  over  articles  taken 
out  of  the  van  of  the  train  by  which  he  traveled,  it  is  for  the  Jury 
to  say  Avhether  it  Is  negligence  to  leave  the  platform  uulighted, 
though  it  is  nearly  dark,  and  whether  the  position  in  which  the 
articles  were  placed  showed  negligence.  Burke  v.  Board,  9  Vict. 
Law  R.  350. 

8  Alaliama  G.  S.  R.  Co.  v.  Arnold,  84  Ala.  159,  4  South.  359,  limit- 
ing Montgomery  &  E.  Ry.  Co.  v.  Thompson,  77  Ala.  448;    Grimes 

(121) 


§    54  CARRIERS   OF  PASSENGERS.  (Ch.    3 

pends  ou  the  circumstances  of  the  case,  and  is  for  the 
jury."  But  a  railroad  company  is  not  bound  to  lioht 
its  phitform  ]ialf  or  three-quarters  of  an  hour  in  ad- 
vance of  the  leayiuo'  time  of  a  train,  and  a  passenoer 
wlio,  in  the  dark,  and  so  long  in  adyance  of  the  sched- 
ule time,  attempts  to  board  cars  not  in  readiness  for 
passengers,  cannot  recoyer  for  injuries  sustained  in  a 
fall  between  the  platform  and  the  cars/°  Where, 
however,  a  passenger  arrives  at  her  destination  at 
nearly  midnight,  and  the  company  refuses  to  deliver 
her  luggage  unless  she  herself  identifies  it,  the  com- 
pany is  bound  to  keep  the  station  lighted  until  she  has 
had  the  opportunity  to  identify  the  luggage;  and 
where  the  lights  are  put  out  while  she  is  in  the  par- 
cels office  to  identify  the  luggage,  and  she  falls  from 
the  platform  after  leaving  the  office,  the  company  is 
liable." 

The  rule  in  respect  to  lights  applies  as  well  to  car- 
riers by  vessels  as  to  carriers  by  railroad.  Thus  a 
steand)oat  company  which  discharges  a  passenger 
over  a  gangway  having  no  guard  rails  is  chargeable 
with  negligence  in  failing  to  have  the  gang  plank 
properly  lighted  at  night,  so  as  to  prevent  passengers 
from  falling  off  the  sides.^^' 

V.  Pennsylvania  Co.,  36  Fed.  72;   Waller  v.  Railway  Co.,  59  Mo.  App. 

»  Grimes  v.  Pennsylvania  Co..  3(i  Fed.  72. 

1"  Hodges  V.  Transit  Co.,  107  N.  C.  576,  12  S.  E.  597. 

11  Black  T.  Board,  1  Vict.  Law  R.  12. 

1  a  Miller  V.  Steamboat  Co.,  73  Hun.  1.50.  25  N.  Y.  Snpp    904      ^ 
ferry  company,  which,  at  the  very  threshold  of  its  gate,  places"a  log 
against  which  its  passengers  are  in  danger  of  stumbling  In  the  dark 
IS  bound  to  do  everything  in  its  power  to  guard  against  the  dan^^er' 
(122) 


Ch.   3)  DUTY    AS    TO    STATIONAL    FACILITIES.  §    54 

The  duty  to  lii^lit  their  depots  is  imposed  on  railroad 
companies  b}-  statute  in  Texas.^^  This  statute  im- 
poses on  them  the  duty  of  lii^hting  only  such  plat- 
forms or  approaches  as  are  necessary  for  ingress  and 
egress  of  passengers,  and  the  question  as  to  what  por- 
tions should  be  lighted  is  ordinarily  one  of  fact  for  the 
jury/*  But  a  railroad  company  cannot  escape  liabil- 
ity' for  failure  to  comply  with  this  statute  by  con- 
tracting with  another  company  to  light  the  depot/ ^ 

If  it  omits  to  place  a  liglit  near  the  obstruction,  for  tlie  protec- 
tion of  passengers  upon  its  boats,  it  is  guilty  of  negligence.  Osborn 
V.  Ferry  Co.,  53  Barb.  629. 

13  Sayles'  Supp.  Rev.  St.  art.  4238  (Laws  1889.  p.  19). 

14  Texas  i&  P.  Ry.  Co.  v.  Reich  (Tex.  Civ.  App.)  32  S.  W.  817. 

15  Id. 

(123) 


55  CARRIERS   OF  PASSENGERS.  (^Oll.    4 


CHAPTER  IV. 

DUTY   OF   CARE   IN   RECEIVING   AND    DISCHARGING   PAS- 
SENGERS. 

§  5."5.    Degree  of  Care  Required. 

56.  Safe  Facilities. 

57.  Same— Duty  to  Afford  Passengers  tlie  Use  of  Stational  Fa- 

cilities. 

58.  Same— Invitation  to  Alight. 

59.  Same— Failure  to  Bring  Train  up  to  Platform. 

60.  Same — Personal  Assistance. 

61.  Same— Moving  Trains  on  Intervening  Tracks. 

62.  Same— Existence  of  Safe  and  Unsafe  Exit. 

63.  Same— Freight  Trains. 

64.  Same— Street  Cars. 

65.  Same— Vessels. 

66.  Reasonable  Time  to  Get  On  and  Off. 

67.  Same— Signals  for  Starting. 

6S.    Same— Sudden  Movement  of  Train  after  Invitation  to  Get  On 
or  Off. 

69.  Same— Direction  to  Leave  Moving  Train. 

70.  Same— Specific  Rules  as  to  Receiving  and  Discharging  Pas- 

sengers. 

71.  Same— Freight  Trains. 

72.  Same— Street  Cars. 

73.  Same— Elevators. 


§  55.     DEGEEE  OF  CARE  REQUIRED. 

The  rule  requiring  the  carrier  to  exercise  the  high- 
est practical  degree  of  care  applies  to  the  pro- 
cess of  receiving  the  passenger  on,  and  in  dis- 
charging him  from,  the  vehicle. 

While  the  weight  of  aiithoritj  is  that,  as  to  the  con- 
struction and  maintenance  of  stational  facilities   the 
(124) 


Ch.  4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    55 

carrier  is  bound  to  only  ordinary  care,^  no  relaxation 
of  the  general  rule  governing  his  liability  has  been  at- 
tempted, so  far  as  the  process  of  receiving  and  dis- 
charging passengers  is  concerned.  "It  is  the  duty  of 
the  company  to  provide  for  the  safe  receiving  and  dis- 
charging of  passengers.  It  is  bound  to  exercise  the 
strictest  vigilance,  not  only  in  carrying  them  to  their 
destination,  but  also  in  setting  them  down  safely,  if 
human  care  and  foresight  can  do  so."  ^  "A  railroad 
company  owes  to  a  passenger  the  duty,  not  only  of 
using  the  utmost  care  and  caution  in  carrying  him,  but 
also  the  same  care  and  caution  in  stopping  and  start- 
ing its  trains  at  the  station  to  which  it  has  agreed  to 
carry  him."  ^  In  an  action  for  injuries  sustained  by  a 
passenger  on  his  way  from  the  train  to  the  station 
house,  caused  by  being  struck  by  an  engine  on  an  in- 
tervening track,  it  was  said :  "The  plaintiff  was  a  pas- 
senger, and  while  that  relation  existed  the  defendants 
were  bound  to  exercise  towards  him  the  utmost  care 
and  diligence  in  providing  against  those  injuries 
which  can  be  avoided  by  human  foresight.  He  was 
entitled  to  this  protection,  so  long  as  he  conformed  to 
the  reasonable  regulations  of  the  company,  not  only 
wliile  in  the  cars,  but  while  upon  the  premises  of  the 
defendants;  and  this  requires  of  the  defendants  due 
regard  for  the  safety  of  passengers,  as  well  in  the  lo- 
cation, construction,  and  arrangement  of  their  station 

§  55.     1  See  ante.  §  47. 

2  Louisville  &  J.  Ferry  Co,  v.  Nolan,  135  Ind.  60,  34  N,  E,  710. 

3  Straus  V.  Railroad  Co.,  8G  Mo.  421.     See,  also,  Waller  v.  Ivailroad 
Co.,  83  Mo,  G08. 

(125) 


§    55  CARRIERS   OF  PASSENGERS.  (Ch.   4 

buildings,  platforms,  and  means  of  egress,  as  in  their 
previous  transportation."  * 

Of  course,  here,  as  elsewhere,  the  carrier  is  not  re- 
sponsible for  injuries  happening  without  fault  on  its 
part.  Thus,  where  a  brakeman,  standing  on  the  rails 
of  two  car  platforms  in  the  performance  of  his  duties, 
accidentally  slips,  and  falls  against  a  passenger 
ascending  the  car  steps,  the  company  is  not  liable  for 
injuries  to  the  passenger,  as  there  is  no  negligence, 
and  the  risk  of  such  an  accident  is  assumed  by  the  pas- 
senger.^    So,  a  railroad  company  is  not  responsible  for 

*  Gaynor  v.  Railway  Co.,  100  Mass.  208,  215.  The  same  principle 
is  laid  down  in  Atchison.  T.  &  S.  F.  R.  Co.  v.  Shean,  18  Colo.  368.  33 
Pac.  108,  and  Central  Railroad  v.  Whitehead,  74  Ga.  441.  In  Leg- 
gett  V.  Railroad  Co.,  143  Pa.  St.  39,  21  Atl.  Wr,,  it  is  said:  "It  is  the 
undoubted  duty  of  a  railroad  company,  not  only  to  carry  the  passen- 
ger safely,  but  to  set  him  down  safely  at  the  place  of  destination, 
if.  in  the  exercise  of  the  utmost  care,  it  could  be  done."  In  Texas 
&  r.  Ry.  Co.  V.  Miller,  79  Tex.  78, 15  S.  W.  264,  it  is  said:  "A  railroad 
company  must  exercise  the  highest  degree  of  care  towards  a  passen- 
ger alighting,  In  reference  to  the  movement  of  the  train  at  the  sta- 
tion; for  over  such  movement  the  passenger  has  no  more  control  in 
the  one  case  than  in  the  other,  and  must  trust  wholly  to  the  car- 
rier, as  does  he  when  sitting  in  the  car  as  to  the  rate  of  speed,  or 
any  other  matter  affecting  his  safety."  See,  also,  St.  Louis.  A.  &  T. 
Ry.  Co.  V.  Finley,  79  Tex.  85,  15  S.  W.  266;  Houston  &  T.  C.  R.  Co. 
V.  Dotson  (Tex.  Civ.  App.)  38  S.  W.  642.  In  Wabash,  St.  L.  &  P. 
Ry.  Co.  V.  Rector,  104  111.  296,  the  rule  is  stated  as  follows:  "It  is 
the  duty  of  every  railway  company  to  cause  its  passenger  trains 
to  stop  at  each  station  advertised  as  a  place  for  receiving  and  dis- 
charging passengers  a  suttlcient  length  of  time  to  receive  and  let  off 
passengers  with  safety,  and  to  provide  a  reasonably  safe  way  of 
reaching  and  departing  from  their  cars  at  all  usual  stations;  and  it 
is  the  duty  of  passengers  to  exercise  ordinary  care  for  their  safety 
on  attempting  to  take  passage  on  a  railway  car." 

c  Skinner  v.  Railroad  Co.,  39  Fed.  188, 


■Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    -56 

injuries  to  an  ine^erienced  passenger,  who,  in  the 
confnsion  and  excitement  of  her  first  trip  on  a  rail- 
road, and  while  the  train  is  stationary,  slips  or  is 
pushed  from  the  car  platform  on  the  side  opposite  the 
one  she  has  ascended,  and  falls  down  an  embankment.*' 
But  a  railroad  company  is  responsible  for  the  conse- 
quences of  negligence  in  giviug  directions  to  passen- 
gers as  to  the  mode  of  entering  cars.' 

§  56.     SAFE  FACILITIES. 

It  is  the  duty  of  a  carrier  of  passengers  to  exercise 
due  care  in  providing  safe  facilities  to  enable 
passengers  to  get  on  and  off  his  vehicle.^ 

This  principle  runs  all  through  the  subject,  as  the 
following  sections  more  fully  show.  It  is  the  duty  of 
a  railroad  company,  before  the  departure  of  the  pas- 
senger train  at  the  station,  to  clear  the  way  by  the  re- 
moval of  freight  trains  between  it  and  the  depot  build- 
ings, so  that  passengers  can  approach  the  passenger 
train  with  safety;  and,  if  a  passenger  is  prevented  by 
lack  of  time  from  walking  around  the  freight  train, 
the  company  is  liable  for  injuries  sustained  by  him  in 
climbing  between  the  freight  cars,  provided  he  is  not 
guilty  of  contributory  negligence  in   so  doing.'      A 

«  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Trotter.  Gl  Miss.  417. 

7  Allcmler  v.  Railroad  Co.,  43  Iowa,  276. 

§  5G.  1  Texas  &i  V.  Ry.  Co.  v.  McLane  (Tex.  Civ.  App.)  32  S.  W. 
776;  Ricbmond  City  Ry.  Co.  v.  Scott,  80  Va.  902.  11  S.  E.  404.  As 
to  stational  facilities,  etc.,  see  the  prectnlinj,'  chapter. 

2  Chicago  &  N.  W.  Ry.  Co.  v.  Coss,  73  111.  304.  As  to  contribu- 
tory negligence  of  passenger  in  climbing  between  freight  cars,  see 

post.  §  141. 

(127) 


§    57  CARRIERS   OF  PASSENGERS.  (Ch.   4 

jury  is  justified  in  finding  a  railroad  company  guilty  of 
uegligence  in  stopping  a  train  in  such  a  position  that 
the  forward  end  of  a  passenger  car  is  opposite  a  truck 
87  feet  long,  and  7  feet  wide,  with  its  top  on  a  level 
with  the  platform  of  the  cars,  so  that  passengers  get- 
ting out  at  the  forward  end  are  obliged  to  step  on  the 
truck.'  But  if,  at  a  flag  station,  the  place  selected  by 
the  company  to  receive  and  discharge  passengers  is 
ordinarily  safe  and  convenient  for  that  purpose,  the 
company  is  not  bound  to  furnish  special  facilities  to 
keep  passengers  off  the  wet  ground  in  time  of  much 
rain;  and  is  not  liable  for  a  passenger's  illness,  caused 
bv  getting  her  feet  wet  in  alighting  at  this  place.'' 

§  57.     SAME— DUTY    TO     AFFORD    PASSENGER    THE 
USE  OF  STATIONAL  FACILITIES. 

The  duty  of  furnishing  reasonably  safe  facilities  for 
passengers  to  get  on  and  oft'  the  train  includes  the  du- 
ty of  stopping  the  train  in  such  a  manner  that  pas- 
sengers may  avail  themselves  of  these  facilities.  A 
railroad  company  which  negligently  and  wrongfully 
carries  a  passenger  beyond  the  usual  stopping  place, 
into  what  is  practically  its  switching  yard,  where 
there  is  no  accommodation  for  passengers,  and  w^here 
it  knows  there  is  special  risk  and  hazard,  is  bound  to 
use  every  precaution  for  his  protection.^  If  a  passen- 
ger is  carried  some  distance  beyond  the  station,  it  is 
the  company's  duty,  either  to  back  the  train  to  a  con- 

8  Bethmann  v.  Railroad  Co.,  155  Mass.  352,  29  N.  E.  587. 
*  Alabama  &  V.  Ry.  Co.  v.  Stacy,  68  Miss.  463,  9  South.  349. 
S  57.    1  Fiaukliu  v.  Motor  Road  Co.,  So  Cal.  63,  24  Pac,  723. 
(128) 


Ch.    4)  DUTY    AS    TO    RECf:iVING    AND    DISCHARGING.  §    57 

yenient  place  near  the  station,  or  to  give  him  such  in- 
structions and  assistance  as  are  necessary  to  assure 
his  safe  return  to  the  station  house.^ 

The  duty  of  furnishing  reasonably  safe  facilities  ap- 
plies not  alone  to  stations.^  If  the  conductor  of  a  rail- 
road agrees  to  put  a  passenger  off  at  a  particular 
place,  whether  it  be  a  regular  station  or  stopping  place 
or  not,  it  is  the  conductor's  duty  so  to  stop  the  cars 
at  that  place  that  the  passenger  can  get  off  in  safety.* 
If  a  train  stops  near  a  station  where  there  is  no  plat- 
form, and  a  passenger  is  told  by  a  servant  of  the  com- 
pany that  she  may  get  out  there  if  she  wishes,  and  in 
doing  so  she  injures  herself,  it  is  for  the  jury  to  say 
whether  the  company  has  been  guilty  of  negligence."' 
So  a  railroad  company  is  liable  for  an  injury  to  a  pas- 

2  New  York,  C.  &  St.  L.  Ry.  Co.  v.  Uoane.  115  Ind.  135.  17  N.  E. 
913.  A  railroad  company  is  guilty  of  negligence  in  causing  a  female 
passenger  to  alight  on  a  very  dark  night  in  its  yards  about  200 
yards  from  the  depot,  tmd  the  company  is  liable  in  damages  for 
injuries  sustained  by  her  in  an  attempt  to  make  her  way  to  the 
depot.  Warden  v.  Railway  Co.,  35  Mo.  App.  631.  It  is  a  ques- 
tion of  fact  whether  or  not  a  railroad  company  is  guilty  of  negli- 
gence in  constructing  a  cattle  guard  near  its  station,  without  any 
necessity  for  placing  it  there;  and  a  passenger  who  falls  into  it 
in  the  dark,  while  on  the  way  to  the  train,  pursuant  to  the  invita- 
tion of  the  train  hands,  may  recover.  Lawrence  v.  Canal  Co.,  21 
K.  Y.  Wkly.  Dig.  41. 

3  See,  also,  ante,  §  40. 

*  Western  R.  Co.  v.  Young,  51  Ga.  481).  It  cannot  affect  the  rule 
that  a  passenger  had  a  ticket  only  to  the  station  last  passed,  before 
reaching  the  place  at  which  he  was  put  off.  The  conductor  had 
the  power  to  demand  and  receive  any  additional  fare  accruing  for 
carrying  the  i)assonger  to  a  point  beyond  the  station  to  which  his 
ticket  entitled  liim  to  be  carried.     Id. 

6  Foy  V.  Railroad  Co.,  18  C.  B.  (N.  S.)  225. 

V.  1    KKT.CAR.PA.S.— 9  (120^ 


§   57  CARRIERS  OF  PASSENGERS.  (Ch.   4 

songer,  caused  by  the  negligence  of  the  trainmen  in 
putting  her  off  in  the  nighttime  at  a  rough  place,  more 
dangerous  than  the  crossing  where  passengers  were 
usually  put  off,  and  where  she  supposed  she  was  being 
put  off,  there  being  no  depot  in  the  neighborhood.® 

A  railroad  company  is  guilty  of  negligence  in  stop- 
ping a  freight  train,  on  which  it  is  carrying  a  passen- 
ger, within  3  or  4  feet  of  a  retaining  wall  5  or  6  in- 
ches high  on  the  side  nearer  the  track,  and  15  or  20 
feet  from  the  ground  on  the  other  side;  and  it  is  lia- 
ble for  injuries  to  a  passenger  who  is  directed  to 
alight  in  this  place  in  the  nighttime,  without  notice  of 
the  danger,  and  who,  after  his'  feet  had  repeatedly 
struck  the  side  of  the  wall  near  the  track,  made  two 
steps  towards  its  edge,  and  fell  over.^  A  conductor 
who  promises  to  transfer  a  shipper  of  stock  from  his 
train  going  east  to  one  going  west,  at  a  station,  is 
guilty  of  negligence  in  making  the  transfer  at  a  differ- 
ent and  dangerous  place,  without  notifying  him  of  the 
change,  or  warning  him  of  the  danger;  and  the  rail- 
road company  is  liable  for  injuries  sustained  by  the 
shipper  in  falling  into  a  deep  waterway,  in  the  dark, 
on  the  railroad  right  of  way.^ 

6  Houston  &  T.  C.  R.  Co.  v.  Smith  (Tex.  Civ.  App.)  33  S.  W.  896. 
attinning  32  S.  W.  710. 

•  Central  Kailroacl  &  Banldng  Co.  v.  Smith,  80  Ga.  526,  5  S.  E. 
772;    Id..  76  Ga.  209. 

8  Gritfith  v.  Railway  Co.,  98  Mo.  168,  11  S.  W.  559.  A  shipper  of 
stock,  riding  in  the  stoclv  car  with  his  cattle,  asked  the  conductor 
for  oil  for  a  lantern.  The  conductor  told  liim  to  come  back  to  tlif 
caooose  at  the  next  stop,  and  the  oil  would  be  supplied.  In  at- 
tempting to  go  back  in  tlie  dark  at  the  next  stop,  in  obedience  to 
this   direction,   the  drover   was   precipitated   into   a   culvert,   ovir 


Ch.  4)  DUTY    AS   TO    RECEIVING    AND    DISCHARGING.  §    57 

But  the  officers  of  a  railroad  company  have  a  right 
to  presume  that  passengers  will  attempt  to  get  on  and 
off  its  cars  only  at  the  place  designated  by  the  com- 
pany for  that  purpose,  and  it  is  not  the  duty  of  a  rail- 
road company  to  keep  its  track  clear  for  those  who 
may  see  proper  to  pursue  the  cars  while  leaving  the 
depot;  and  more  especially  would  this  be  true  as  to 
those  who  pursue  the  cars  to  a  point  beyond  that  as- 
signed b}'  the  company  for  receiving  and  discharging 
passengers.^  And  a  passenger  who  has  remained  in 
the  train  through  his  own  fault,  when  it  stopped  at 
his  station  a  sufficient  length  of  time  to  enable  him  to 
get  off,  cannot  recover  against  the  company  for  inju- 
ries sustained  in  alighting  at  a  place  half  a  mile  away, 
owing  to  the  nature  of  such  place,  since  the  companj^ 
is  not  required  to  furnish  a  safe  place  to  him.^" 
Where  a  passenger,  carried  past  the  station  platform, 
declines  the  conductor's  offer  to  back  the  train  to  the 
station,  and  requests  to  be  put  off  where  the  train  then 
is,  the  carrier  is  not  chargeable  with  negligence  in  car- 
rying her  past  her  destination,  and  is  not  liable  for  in- 
juries sustained  by  her  in  alighting  there,  unless  it  has 
been  guilty  of  negligence  in  the  discharge  of  its  new 
obligations.^^ 

which  a  portion  of  the  train  was  standing,  and  he  was  injured. 
Held,  that  tlie  conductor  was  acting  in  the  line  of  his  duty,  and 
that  the  company  was  liable  for  the  injuries,  since  the  passenger 
was  obeying  the  conductor's  express  directions.  Nurse  v.  Railway 
Co.,  (Jl  Mo.  A  pp.  (JT. 
»  I'erry  v.  Kailroad,  G6  Ga.  746. 

10  Texas  «&  P.  Ky.  Co.  v.  Woods.  8  Tex.  Civ.  App.  462,  28  S.  W. 
416. 

11  Conwill  V.  Railway  Co.,  85  Tex.  96,  19  S.  W.  1017.     A  railroad 


§    58  CARRIERS   OF  PASSENGERS.  (,Cll.    4 

Sometimes  a  train  stops  before  reaching  a  station, 
and  a  passenger,  thinking  that  the  train  has  arrived 
at  his  destination,  gets  out,  and  is  injured  by  reason  of 
the  dangerous  character  of  the  premises.  In  these 
cases  the  question  of  the  company's  negligence  turns 
on  the  question  whether  tliere  has  been  an  invitation 
to  the  passenger  to  alight,  and  this  subject  will  be 
next  considered. 

g  58.     SAME— INVITATION  TO  ALIGHT. 

When  the  name  of  a  passenger's  station  is  called, 
and  soon  thereafter  the  train  is  brought  to  a  stand- 
still, a  passenger  may  reasonably  conclude  that  it  has 
stopped  at  the  station,  and  endeavor  to  get  off,  unless 
the  circumstances  and  indications  are  such  as  to  ren- 
der" it  reasonably  manifest  that  the  train  has  not 
reached  the  usual  and  proper  landing  place.^     This 

company  is  under  no  obligation  to  furnish  a  safe  exit  for  a  pas- 
senger at  a  point  several  hundred  yards  from  its  station;  nor.  un- 
less its  own  announcement  and  direction  has  put  him  out  there, 
or  it  has  declined  to  retake  him  on  board,  is  it  under  obligation  to 
afford  him  help  in  his  exit  from  that  place,  if  he  has  with  fool- 
hardiness  put  himself  there,  and  declares  he  Avill  take  care  of  him- 
self. Central  Railroad  v.  Thomp'on,  76  Ga.  770.  A  passenger  who 
gets  on  a  wrong  train,  and  who  voluntarily  leaves  it  at  a  junction 
point,  half  or  three  quarters  of  a  mile  from  the  station,  to  take 
the  right  train,  which  is  pointed  out  to  him  by  the  conductor,  as- 
sumes the  risk  of  ordinary  obstructions  on  the  track;  and  cannot 
recover  for  injuries  sustained  by  falling  into  a  cattle  guard  in  the 
dark.    Finnegan  v.  Railway  Co.,  48  Minn.  .378,  .51  N.  W.  122. 

§  58.     1  Hooks  V.  Railway  Co.,  73  Miss.  14,".,  18  South.  02.j;    Smith 

V.  Railway  Co.,  88  Ala.  540,  7  South.  119;    Memphis  &  L.  R.  Ry.  Co. 

V.  Stringfellow,  44  Ark.  322;    Devine  v.  Railway  Co.  (Iowa)  GO  X.  W. 

1042.    The  calling  of  a  station  by  the  employes  of  a  carrier  is  notice 

(132) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    58 

proposition  rests  on  reason  and  experience,  is  jnsti- 
tied  by  custom,  conforms  to  the  understandino-  of  rail- 
road  carriers  and  the  traveling  public,  and  is  main- 
tained by  the  strong  current  of  authority.^  In  this 
country  it  is  the  almost  universal  practice  to  announce 
the  station  which  the  train  is  approaching  before  it  is 
reached,  and  while  the  train  is  still  in  motion;  and  it 
is  universallv  understood  that  such  announcement  is 
intended  as  notice  to  the  passenger,  without  warning 
to  the  contrary,  that  the  next  stop  of  the  train  will  be 
at  the  station  announced.  The  purpose  is  understood 
to  be  to  enable  the  passengers  intending  to  alight  at 
that  station  to  be  ready  to  leave  the  cars  promptly, 
without  undue  haste  or  inconvenience  to  themselves, 
or  unnecessary  delay  to  the  train.^  The  cases  illus- 
trating this  proposition  are  quite  numerous.  Wlieri^ 
the  name  of  a  station  is  called,  and  the  train  is  halted 
shortly  afterwards  in  the  nighttime,  the  jury  may  find 
the  carrier  guilty  of  negligence,  in  an  action  by  a  pas- 
senger, who,  believing  the  train  at  the  station,  stepped 
from  the  car,  and  fell  through  a  trestle  on  which  the 
train  had  stopped.*     Where  a  passenger's  station  is 

to  passengers  bound  for  that  station  to  alight  when  the  train  stops 
there.  Houston  &  T.  C.  R.  Co.  v.  Dotson  (Tex.  Civ.  App.)  38  S.  W. 
042. 

2  Richmond  &  D.  R.  Co.  v.  Smith,  92  Ala.  237,  9  South.  223. 

3  Chicago  &  A.  R.  Co.  v.  Arnol,  144  111.  261,  33  N.  E.  204.  It  may 
be  carelessness,  according  to  circumstances,  in  a  railroad  company 
to  notify  passengers  in  the  nighttime  that  a  station  is  at  hand, 
and  then  stop  the  train  short  of  such  station.  Central  R.  Co.  v. 
Van  Horn,  38  N.  J.  Law,  133;  Falk  v.  Railroad  Co.,  50  X.  J.  Law. 
380.  29  Atl.  157. 

4  International  &  G.  N.  R.  Co.  v.  Eckford,  71  Tex.  274.  S  S.  W. 

(1  :'.••{) 


§   58  CARRIERS  OF  PASSENGERS.  (Ch.    4 

called,  the  question  whether  the  company  is  guilty  of 
negligence  in  stopping  the  train  in  the  nighttime  some 
distance  from  the  station,  near  a  ditch,  is  a  question 
for  the  jury,  in  an  action  by  a  passenger  for  injuries 
sustained  in  falling  into  the  ditch/  The  question  as 
to  whether  train  hands  are  guilty  of  negligence,  after 
announcing  a  station,  in  stopping  the  train  short  of  it, 
in  the  nighttime,  without  notifying  passengers  that 
they  had  not  reached  it,  and  with  a  freight  train  ap- 
proaching on  a  parallel  track,  is  one  for  the  jury.^ 

Of  course,  the  case  is  stronger  for  the  passenger 
when  the  train  hands  do  some  act,  in  addition  to  call- 
ing the  name  of  the  station  and  stopping  the  train. 
A  passenger  is  justified  in  believing  that  her  train  is 
at  the  depot  platform,  where  the  name  of  the  station 
is  announced,  the  train  stopped,  and  a  brakeman  as- 
sists her  to  alight  in  the  dark/  A  conductor  who  in- 
forms a  passenger  that  the  next  stop  will  be  at  her 
destination,  and  takes  up  her  check,  is  guilty  of  negli- 
gence in  failing  to  inform  her  that  her  destination  has 
not  been  reached,  when  the  train  is  stopped  by  an  un- 

679;   McGee  v.  Railway  Co.,  92  Mo.  208,  4  S.  W.  739;   Philadelphia, 
W.  «&  B.  R.  Co.  V.  Mccormick,  124  Pa.  St.  427,  16  Atl.  848. 

5  Miller  v.  Railway  Co.,  93  Ga.  630,  21  S.  E.  153;  Columbus  &  I. 
C.  Ry.  Co.  V.  Farrell,  31  Ind.  408. 

6  Boss  V.  Railroad  Co.,  15  R.  I.  149,  1  Atl.  9.  Where,  on  approach- 
ing a  station,  a  brakeman  calls  out  its  name,  it  is  negligence  to  stop 
the  train  in  the  nighttime  some  distance  from  the  station,  and  a 
passenger  injured  in  getting  off  may  recover.  Ward  v.  Railway 
Co.,  165  111.  462,  46  N.  E.  365,  reversing  61  111.  App.  530. 

T  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Holsapple,  12  Ind.  App.  301,  38 
N.  E.  1107. 
(134) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    58 

expected  signal,  in  tlie  nighttime,  at  an  unusual 
place.* 

It  must  be  borne  in  mind,  however,  that  the  circum- 
stances and  indications  mav  be  such  as  to  render  it 
reasonably  manifest  that  the  train  has  not  reached 
the  usual  and  proper  lauding  place,  notwithstanding 
the  fact  that  the  name  of  the  station  has  been  an- 
nounced, and  the  train  brought  to  a  standstill.  Thus, 
calling  out  the  name  of  a  station  is  not  an  invitation 
to  a  passenger  to  alight  in  broad  daylight,  when  the 
train  co^^es  to  a  standstill  at  a  railroad  crossing, 
where  there  is  nothing  at  that  spot  to  indicate  a  land- 
ing place,  and  there  is,  at  the  proper  place,  a  short  dis- 
tance further  on,  a  building  and  platform  appropriate 
and  used  for  that  purpose,^ 

It  will  be  noticed  that  it  is  the  combination  of  the 
announcement  of  a  passenger's  station,  and  the  stop- 
page of  the  train  shortly  afterwards,  that  constitute 

8  Peunsylvania  Co.  v.  Hoagland,  78  Ind.  203.  A  drover  on  a  stock 
train,  accompanied  by  two  boys,  was  told  by  the  conductor  that  the 
train  had  arrived  at  the  town  of  his  destination,  and  to  get  ready  to 
get  off.  Shortly  afterwards  the  train  stopped,  moved  forward  slow- 
ly, and  again  stopped.  The  night  was  dark,  and,  when  the  train 
stopped  the  second  time,  the  drover,  with  his  two  boys,  went  on 
the  platform,  and  one  of  the  boys  was  thrown  therefrom  by  the 
sudden  starting  of  the  train.  Held,  that  it  was  a  question  for  the 
jury  whether  or  not  the  drover  was  authorized  to  believe  that  he 
was  expected  to  alight  from  the  car  at  the  time  and  place  he  at- 
tempted to  do  so.     Texas  &  P.  Ry.  Co.  v.  Garcia,  62  Tex.  285. 

9  Mitchell  V.  Railway,  51  Mich.  236,  16  N.  W.  388.  Where  a  rail- 
road train,  after  the  announcement  of  the  station,  is  brought  to  a 
standstill  in  a  deep  cut  in  broad  daylight,  a  passenger  is  not  justi- 
fied in  assuming  that  the  train  has  reached  the  station.  Smith  v. 
Railway  Co.,  88  Ala.  538,  7  South.  111). 

(135) 


§   58  CARRIERS  OF  PASSENGERS.  (Ch.    4 

ail  invitation  to  alight  Calling  out  the  name  of  a  sta- 
tion does  not  alone  constitute  an  invitation.  ^'Call- 
iuu-  out  the  name  of  a  station  is  an  announcement  by 
the  railway  oHicers  that  the  train  is  approaching,  or 
has  arrived  at,  the  platform,  and  that  the  passenger 
may  get  out  when  the  train  stops  at  the  platform,  or 
under  circumstances  induced  and  caused  by  the  com- 
pany, in  which  the  man  reasonably  supposes  he  is  get- 
ting out  at  the  place  where  the  company  intended 
him  to  alight."  ^^  So  the  act  of  a  brakeman  in  calling 
the  station,  and  fastening  back  the  car  door,  is  not,  as 
matter  of  law,  an  invitation  to  alight,  but  is  simply 
an  announcement  that  the  train  is  near  the  station, 
and  will  presently  stop,  so  as  to  enable  passengers  in- 
tending to  alight  there  to  do  so  when  the  train  stops.^^ 
On  the  other  hand,  the  mere  stoppage  of  the  train, 
without  announcing  the  station,  does  not  always  au- 
thorize a  passenger,  who  believes  himself  near  his  des- 
tination, in  leaving  the  train.  If  the  stoppage  is  at  a 
regular  station,  it  is  an  invitation  to  the  passenger  to 
alight,  though  the  station  is  not  announced. ^^     But  it 

10  Bridges  v.  Railway  Co.,  L.  R.  7  H.  L.  224. 

11  Enjiland  v.  Railroad  Co.,  153  Mass.  490,  27  N.  E.  1. 

12  Rani)  V.  Railway  Co.,  103  Cal.  473,  37  Pac.  374.  It  is  negligence, 
as  mutter  of  law.  for  a  railroad  company  to  stop  its  train  for  half 
an  hour  in  the  nighttime,  over  an  open  ditch,  six  or  eiglit  feet  deep, 
with  no  stationary  lights  there,  such  place  being  a  usual  stopping 
]>l;i("  fur  tlie  train;  and  a  passenger  who  falls  into  the  ditch  on 
leaving  the  car  may  I'ecover  from  the  company.  Montgomery  &  W. 
1*.  R.  Co.  v.  Boring,  51  Ga.  582.  Where  a  passenger  on  a  dummy 
line  is  carried  past  the  street  crossing  which  is  his  destination  and 
ordinary  stopping  place  to  the  next  crossing,  where  the  train  come* 
to  a  full  stop,  it  is  proper  to  submit  to  the  jury  the  question  whether 

(laij) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AMD    DISCHARGING.  §    58 

is  different  if  the  stop  is  made  at  a  place  not  a  station. 
^'It  cannot  be  successfully  claimed  that  it  is  the  duty 
of  those  in  charge  of  a  train  to  warn  passengers  not 
to  attempt  to  leave  a  train  when  it  is  not  at  a  station, 
unless  they  have  said  or  done  something  calculated 
to  lead  passengers  to  think  they  have  arrived  at  the 
station.  In  the  running  of  trains  of  cars,  exigencies 
frequently  arise  requiring  them  to  come  to  a  halt  at 
a  point  when  not  at  stations.  It  is  incumbent  on  the 
passengers  to  be  vigilant  and  attentive,  and  not  to 
attempt  to  alight  until  they  are  in  some  way  informed 
that  their  train  has  arrived  at  the  station."^^  The 
stopping  of  a  train  at  night  at  a  point  not  a  station, 
to  allow  a  train  expected  fro^n  the  opposite  direction 
to  pass  by,  without  aiy  notice  given  by  the  servants 
of  the  company  to  passengers  that  they  may  leave  the 
cars,  constitutes  no  invitation  to  passengers  to  alight ; 
and  one  who  leaves  the  cars,  and  walks  into  an  open 
cattle  guard,  cannot  recover  for  injuries  sustained.'^ 

this  is  an  implied  invitation  by  those  in  charge  of  the  train  for 
hiiu  to  get  off  at  that  point.  tTadsden  &  A.  U.  Ry.  Co.  v.  Causler. 
97  Ala.  235,  12  South.  439. 

13  Davis  V.  Railroad  Co.,  64  Hun.  492,  19  N.  Y.  Supp.  516.  In 
this  case  a  train  stopped  near  a  station  on  a  dark  night,  before 
crossing  the  tracks  of  another  road.  A  passenger,  thiniiing  th»' 
train  was  at  the  station,  stepped  off,  fell  through  a  trestle,  and  was 
drowned.  The  station  had  not  been  announced,  nor,  on  the  other 
hand,  had  passengers  l)een  warned  not  to  alight,  though  the  stop 
was  for  about  tive  minutes.  Held,  that  defendant  had  not  been 
guilty  of  negligence. 

1*  Frost  V.  Railroad  Co.,  10  Allen  (Mass.)  387.  Where  a  train 
stops  in  the  night  upon  a  bridge  over  a  stream  to  take  water,  it  not 
being  a  stojtpiug  place  for  passengers  to  get  on  and  off,  no  duty 
rests  on  the  company  to  notify  pas.sengers  not  to  get  off  the  cars. 

(137) 


§    58  CARRIERS  OF  PASSENGERS.  (Ch.   4: 

So  the  mere  fact  that,  when  a  train  leaves  a  station, 
the  brakeman  announces  the  name  of  the  next  station, 
does  not  put  the  company  under  any  obligation  to 
o-uard  aaainst  an  exodus  of  passengers  when  the  train 
stops  at  an  intervening  railroad  crossing.  It  has  a 
right  to  expect  that  its  passengers  will  sit  in  the  cars 
until  stations  are  called,  as  is  the  common  custom  of 
railroads,  or,  if  they  do  not,  that  they  will  inform 
themselves  in  relation  to  their  whereabouts.'^ 

Another  close  question  on  this  subject  is  this:  Is 
it  sufficient  for  the  passenger  to  show  that  an  an- 
nouncement of  the  station  was  made,  or  must  he  go 
further,  and  show  that  it  was  made  by  the  carrier's 
servants?  The  supreme  court  of  the  District  of  Co- 
lumbia has  held  that  the  mere  fact  that  a  station  has 
been  announced  in  the  train  does  not  raise  the  pre- 
sumption that  it  was  done  by  one  of  the  company's 
servants;  and  hence  that  this  fact  alone  does  not  ren- 
der the  company  liable  for  the  death  of  a  passenger, 
who  leaves  the  train  while  it  stops  momentarily  be- 
fore reaching  the  station  platform,  even  though  the 
announcement  was  not  countermanded  by  the  com- 
pany's  employes.'®      The   supreme  judicial   court   of 

and  a  failure  so  to  do  is  not  negligence.  Illinois  Cent.  K.  Co.  v. 
Green.  81  111.  19. 

15  Minock  V.  Railway  Co.,  97  Mich.  425,  56  N.  W.  780.  An  an- 
nouncement by  a  brakeman,  on  the  train  leaving  a  station,  of  the 
name  of  the  next  station,  is  not  an  invitation  for  a  passenger  to 
that  station  to  leave  the  train  at  the  next  stop,  without  further  no- 
tice; and  it  is  not  negligence  to  stop  the  train  before  reaching  the 
station,  without  warning  passengers  not  to  get  off.  Ward  v.  Rail- 
way Co.,  1(55  111.  402,  46  N,  E.  365. 

ic  Pabst  v.  Railroad  Co.,  2  MacArthur.  42. 

(138) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    58 

Massachusetts  has,  however,  with  better  reason, 
reached  a  different  conclusion.  Evidence  of  the  an- 
nouncement of  a  station,  when  the  train  reaches  a 
city,  and  before  it  stops,  whether  the  announcement 
was  made  by  a  railroad  man,  or  by  any  other  person, 
is  competent  both  on  the  question  Avhether  a  passen- 
ger's conduct  in  leaving  the  train  while  making  a  tem- 
porary stop,  before  reaching  the  station  platform,  was 
careful,  and  upon  the  question  whether  defendant's 
servants  used  due  care  to  prevent  her  from  attempt- 
ing to  leave  the  train  at  a  time  when  it  was  not  stop- 
ped to  deliver  passengers.  A  passenger  hearing  such 
an  announcement  cannot  be  presumed  to  know  that  it 
was  not  made  on  authority  of  the  carrier;  and,  if  she 
does  not  know  that  the  announcement  is  unauthor- 
ized, she  is  justified  in  alighting  when  the  train  stops. 
So,  too,  if,  as  a  train  is  about  to  make  a  temporary 
stoj)  at  a  station,  before  reaching  a  station  platform, 
to  keep  out  of  the  way  of  another  train,  an  unauthor- 
ized announcement  of  the  station  is  made  by  some 
third  person,  accompanied  by  a  direction  to  "change" 
for  another  station,  it  is  a  question  for  the  jury 
whether  the  fact  that  such  a  call  has  been  publicly 
made  does  not  impose  on  the  carrier  the  duty  to  give 
a  counter  warning  that  passengers  are  not  yet  to  leave 
the  train,  and  whether  it  is  negligence  on  the  part  of 
the  carrier  to  suffer  a  passenger  to  get  upon  the  plat- 
form, without  warning,  for  the  purpose  of  leaving  the 
train. ^' 

iTFloytrup  v.  Railroad,  103  Mass.  152,  39  N.  E.  797;    England  v. 
Railroad  Co.,  153  Mass,  490,  492,  27  N.  E.  1. 

(13D) 


§    59  CARRIERS  OF  PASSENGERS.  (Cil.   4 

§  59.     SAME-FAILURE    TO  BEING    TRAIN  UP  TO 

PLATFORM. 

The  question  whether  or  not  there  has  been  an  in- 
vitation to  alight  is  quite  important  in  those  cases 
where  a  passenger  is  injured  in  alighting,  by  reason 
of  the  fact  that  the  train  has  not  been  properly  drawn 
up  at  the  station  platform.     The  principle  governing 
the  English  cases  is  thus  stated  by  Cockburn,  C.  J.: 
^'Bringing  a  railway  carriage  to  a  standstill  at  a  place 
at  which  it  is  unsafe  for  a  passenger  to  alight,  under 
circumstances  which  warrant  the  passenger  in  believ- 
ing that  it  is  intended  he  shall  get  out,  and  that  he 
may  do  so  with  safety,  without  any  warning  of  his 
danger,  is  negligence  on  the  part  of  the  company, 
which  will  entitle  the  passenger  to  recover  for  injuries 
sustained  in  alighting,  in  the  absence  of  contributory 
negligence  on  his  part."  '      In  this  case  the  train  was 
brought  to  a  standstill  in  such  a  manner  that  the  last 
carriage,  in  which  plaintiff  rode,  was  opposite  to  a  re- 
ceding portion  of  the  platform,  aud  about  four  feet 
from  it      The  night  was  dark,  and  the  place  where 
the  last  carriage  stopped  was  not  lighted.     There  was 
no  express  invitation  given  plaintiff*  to  alight,  but  the 
train  had  been  brought  to  a  final  standstill,  and  did 
not  move  on  again  until  it  started  on  its  onward  jour- 
ney.    Plaintiff'  opened  the  carriage  door,  and,   step- 
ping out,  fell  into  the  space  between  the  carriage  and 
the  platform.     It  was  held  that  there  was  evidence  of 
negligence  on  the  part  of  defendant's  servants  to  go 

S  59.    1  Cockle  v.  Railway  Co.,  L.  R.  7  C.  P.  321. 
(140) 


Ch.   4)  DLTV    AS    TO    RKCEIVING    AND    DISCHAKGING.  §    5'.) 

to  the  jury.  In  a  case  decided  in  the  house  of  lords,- 
the  facts  were  as  follows:  A  passenger  train  went 
only  partially  up  to  the  main  platform  of  a  station, 
leaving  the  last  two  cars  within  a  tunnel,  which  was 
not  lighted.  The  last  carriage  came  to  a  standstill  op- 
posite a  heap  of  rubbish.  A  witness,  who  was  a  passen- 
ger in  the  next  to  the  last  carriage,  heard  the  name  of 
the  station  called,  and  alighted  in  safety.  He  then 
heard  a  groan,  and  found  a  passenger,  who  had  been 
riding  in  the  last  carriage,  lying  on  the  rubbish,  with 
his  leg  broken,  and  other  injuries,  of  which  he  died.  The 
witness  heard  a  warning,  "Keep  your  seats,"  after  he 
had  alighted,  and  the.  train  moved  on  after  he  dis- 
covered the  injured  passenger.  It  was  held  that  there 
was  sufficient  evidence  of  negligence  to  take  tJie  case 
to  the  jur}',  and  that  it  w^as  error  to  enter  a  nonsuit. ' 

2  Bridges  v.  Railway  Co.,  L.  R.  7  H.  L.  213. 

8  Tlie  following  is  a  summary  of  some  of  the  other  English  cases 
on  this  subject:  A  long  train  was  stopped  at  a  platform,  so  that 
part  of  it  Avas  alongside  the  parapet  of  a  bridge.  In  the  dark,  a 
passenger,  after  the  train  had  stopped,  and  defendant's  servants 
had  called  out  the  name  of  the  station,  stepped  upon  the  parapet, 
believing  it  to  be  the  platform,  and  fell  over.  Held,  in  an  action  for 
the  injuries  sustained  in  the  fall,  that  the  judge  was  right  in  sub- 
mitting to  the  jury  the  question  whether  the  ciix-umstances  amount- 
ed to  an  invitation  to  plaintiff  to  alight,  and  that  there  was  evidence 
of  negligence  on  defendant's  part  which  justified  a  verdict  in  plain- 
tiff's favor.  Whittaker  v.  Railway  Co.,  22  LaAV  T.  (N.  S.)  545.  A 
porter  called  out  the  name  of  a  station,  the  engine  driver  oversliot 
the  station  platform,  and  the  train  came  to  a  standstill.  A  pas- 
senger, hearing  carriage  doors  opening  and  shutting,  and  seeing  a 
person  alight  from  the  next  carriage,  stepped  out  of  tlu^  carriage, 
and  was  injured  in  a  fall  on  the  embankment.  It  was  night,  and 
there  was  no  light  near  the  spot,  and  no  caution  was  given.  Held, 
tlir.t  the  passenger  liad  a  right  to  assume  that  the  train  had  come 

(141) 


C    59  CARRIERS   OF   PASSENGERS.  (Ch.   4 

A  somewhat  different  ruling  was  made  in  the  case  of 
Lewis  V.  Kailway  Co.  As  a  train  approached  a  sta- 
tion, an  official  on  the  station  platform  called  ont  the 
name  of  the  station,  and  shortly  afterwards  the  train 
came  to  a  standstill,  having  overshot  the  station  plat- 
form. A  passenger  proceeded  to  get  ont,  but  w^as  in- 
jured because  of  the  backing  of  the  train  to  bring  it 
to  the  station  platform.  It  was  held  that  the  com- 
pany was  not  guilty  of  any  negligence,  and  that  tJie 
calling  out  of  the  name  of  the  station  by  the  official 
on  the  platform  was  not  an  invitation  to  alight." 
This  case  would  certainly  be  decided  differently  by 
most  of  the  courts  of  this  coijntry,  and  they  would 
unquestionably  permit  it  to  go  to  the  jury  on  the  ques- 
tion of  defendant's  negligence. 

When  the  injury  occurs  in  daylight,  and  tlie  passen- 

to  a  final  standstill,  and  that  the  jury  was  justified  in  finding  defend- 
ant guilty  of  negligence.  Weller  v.  Railway  Co.,  L.  R.  9  C.  P.  120. 
Plaintiff,  on  arriving,  after  dark,  at  a  station  at  which  he  was  to 
alight,  heard  the  name  of  the  station  called  out  two  or  three  times 
by  one  of  the  porters.  Plaintiff's  carriage  was  drawn  up  at  a 
place  about  35  feet  from  the  end  of  the  platform.  No  lights  were 
there,  and  plaintiff,  in  stepping  out,  fell  on  his  head,  and  was  in- 
jured. Held,  that  there  was  evidence  of  negligence  on  the  part  of 
defendant,  which  warranted  the  submission  of  the  case  to  the  jury. 
Gill  V.  Railway  Co.,  26  Law  T.  (N.  S.)  945. 

■i  Lewis  V.  Railway  Co.,  L.  R.  9  Q.  B.  66.  From  the  remarks  of 
Blackburn,  J.,  in  this  case,  one  would  infer  tliat  English  railway 
porters  are  no  better  elocutionists  than  American  brakemen.  He 
says:  "Every  person  must  have  heard  porters  at  a  railway  station 
call  out  something,  which,  if  he  happens  to  know  the  narue  of  the 
station,  he  can  recognize;  if  not,  it  frequently  happens  that  the 
passenger  cannot  make  out  what  name  it  is  that  the  porters  are 
calling  out.  Calling  out  the  name  of  a  station  is  not  an  invitation  to 
alight." 

(142) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §   59 

ger  is  able  to  see  the  danger,  the  English  courts  also 
manifest  great  reluctance  in  permitting  recovery  for 
injuries  sustained  in  alighting  because  of  the  failure 
of  the  train  to  be  drawn  up  at  the  station  platform. 
Thus  where  the  front  car  in  a  long  excursion  train 
overshoots  the  station  platform,  the  company  is  not 
guilty  of  negligence  in  failing  to  adopt  special  pre- 
cautions in  assisting  passengers  to  alight;   and  one  of 
them,  who  sprains  her  knee  in  jumping  from  an  iron 
step  of  the  carriage  to  the  ground  three  feet  below, 
without  using  an  iron  footboard  between  the  iron  step 
and  the  ground,  cannot  recover  for  the  injury.'     The 
Irish  courts  seem  to  be  more  liberal  than  the  English 
courts  in  this  respect.     In  Nicholls  v.  Railway  Co.  the 
facts  were  as  follows:     Part  of  a  railway  train,  includ- 
ing plaintiff's  carriage,  overshot  the  platform  in  day- 
light.    A  porter  called  out  the  name  of  the  station, 
and  let  out  some  of  the  passengers,  who  were  depart- 
ing from  the  station.     A  reasonable  time  for  backing 
the  train  had  elapsed,  and  there  was  apparently  no 
intention  to  back  it,  and  there  was  at  hand  no  servant 

e  Siner  v.  Railway  Co.,  L.  R.  3  Excb.  150.  L.  U.  4  Exch.  117.  This 
case  was  distinguished  and  doubted  in  Robson  v.  Railway  Co.,  2  Q. 
B.  Div,  87,  89.  A  station  platform  was  of  sufficient  length  to  ac- 
commodate all  ordinary  traffic.  A  passenger,  in  alighting  in  broad 
daylight  from  a  caiTiago  whleli  was  beyond  the  platform  because 
of  tlie  extraordinary  length  of  the  train,  sustained  injuries  by  the 
slipping  of  her  foot  from  the  step  of  the  carriage.  Held,  that  the 
place  where  plaintiff  was  required  to  alight  being  a  safe  place,  and 
the  cause  of  the  accident  being  the  slipping  of  her  foot,  which 
would  equally  have  happened  if  her  carriage  had  been  opposite  the 
platform,  lliere  was  no  evidence  of  negligence  for  the  jury.  Owen 
V.  Railway  Co.,  4U  Law  J.  (Q.  B.)  48U. 

(143) 


§    59  CARRIERS   OF  PASSENGERS.  (Cll.    4 

of  the  company  whom  plaintiff  couki  request  to  have 
the  train  backed.  Plaintiff,  while  cautiously  attempt- 
ing to  alight,  fell,  and  was  injured.  It  w^as  held  that 
there  was  sufficient  evidence  of  negligence  to  go  to 
the  jury.* 

The  principle  governing  the  American  courts  in  this 
class  of  cases  is  stated  thus:  It  is  the  duty  of  a  rail- 
way company  to  afford  passengers  reasonable  facili- 
ties in  alighting  from  the  cars,  both  by  a  reasonably 
safe  platform,  and  by  stopping  the  train  in  such  a 
manner  that  thev  mav  avail  themselves  of  it,  without 
unnecessary  exposure.'^  The  stopping  of  a  railroad 
train  at  a  station  in  such  a  manner  that  the  rear  end 
of  a  car  is  not  at  a  platform,  and  at  a  place  where  it 
is  not  light  enough  for  passengers  to  alight  in  safety, 
warrants  the  jury  in  finding  the  company  negligent, 
though  the  front  end  of  the  car  is  at  the  station.* 
Where  a  train  pulls  up  at  a  platform,  so  that  nothing 
but  the  forward  end  of  the  smoking  car  is  at  the  plat- 
form, passengers  in  the  rear  cars,  especially  ladies, 
are  not  bound  to  go  through  the  smoker  to  alight;  and 

6  Xieholls  V.  Railway  Co.,  Ir.  R.  7  C.  L.  40.  A  long  excursion  train 
was  stopped  so  as  to  leave  several  carriases  b(\vond  the  platform.  A 
female  passenger  in  one  of  these  carriages,  after  waiting  some  time 
for  assistance,  descended  from  the  carriage  by  herself,  and  was  in- 
jured. It  was  held  that  the  arrival  of  the  train  at  the  end  of  its 
journey,  together  with  the  fact  that  the  officers  of  the  company 
were  letting  passengers  out,  was  evidence  of  an  invitation  to  alight; 
and  that  evidence  that  the  station  master  saw  plaintiff  when  about 
to  alight  from  the  carriage,  without  warning  her  of  the  danger. 
was  suflicient  to  take  the  case  to  the  jury.  Thompson  v.  Railway 
Co.,  Ir.  R.  5  C.  L.  517. 

T  Dolamatyr  v.  Railroad  Co.,  24  Wis.  578. 

8  McDonald  v.  Railroad  Co.,  88  Iowa.  o4o,  55  N.  W.  102. 
(144) 


Ch.  4)  DrTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    GO 

if,  in  consequence  of  the  position  of  the  train,  they  are 
injured  in  «i;etting  off  the  ear  in  which  tliey  have  been 
riding,  it  is  the  fault  of  the  company.®  Where  a  train 
OYershoots  its  usual  stopping  place,  but  not  the  sta- 
tion platform,  it  is  a  question  for  the  jury  whether  it 
is  negligence  to  back  it  to  the  usual  stopping  place, 
without  ascertaining  whether  there  are  passengers  at- 
tempting to  alight,  and  without  warning  them  of  the 
start.'" 


§  60.     SAME— PERSONAL  ASSISTANCE. 

A  railroad  company  is  under  no  obligation  to  fur- 
nish an  able-bodied  passenger  personal  assistance  in 
getting  on  or  oft'  a  train  properly  drawn  up  at  a  sta- 
tion platform;  but  if  the  train  is  stopped  at  a  danger- 
ous place,  or  the  passenger  is  under  a  physical  dis- 
ability, the  duty  to  furnish  personal  assistance  arises. 
The  cases  on  this  subject  are  not  altogether  harmoni- 
ous, and  those  where  the  duty  has  been  held  not  to 
exist  will  be  first  considered.  In  an  early  Wisconsin 
case  it  was  said  that  a  railroad  company  is  not  bound 

9  Cartwright  v.  Railway'  Co.,  52  Mich.  (!()(!,  18  N.  W.  380. 

10  Shoi-wood  V.  Railway  Co.,  82  Mich.  374,  40  N.  AY.  773.  See.  also. 
Taber  v.  Railroad  Co..  71  N.  Y.  489,  4  Hun.  76.5.  The  car  on  which 
plaintiff  was  a  passenjrer  ran  past  the  station  platform,  and  into 
a  tunnel,  where  she  could  not  alight  on  tlie  side  of  the  car  that 
the  platform  was  on.  .Tust  as  she  Avas  about  to  alight  on  the  oppo- 
site side,  the  train  started  suddenly,  and  she  was  thrown  to  the 
ground.  Held,  that  defendant  was  negligent  in  failing  to  provide  a 
safe  alighting  place,  and  also  in  failing  to  stop  the  car  a  reasonable 
lengtli  of  time.  Onderdoiik  v.  Railway  Co.,  74  Hun.  42.  2(i  X.  V. 
Supp.  310. 

V.   1  FKT.CAU.PAS. 10  fl45) 


§    GO  CARRIERS  OP  PASSENGERS.  (Ch.    4 

to  furnish  passengers  personal  assistance  in  getting  on 
and  off  at  stations,  or  to  station  employes  there  to  warn 
passengers  against  boarding  moving  trains,  or  to  give 
general   information   about   getting   on   board.'      So, 
where  access  to  a  train  at  a  station  is  easy,  personal  as- 
sistance from  the  carrier's  employes  cannot  be  requir- 
ed by  passengers  as  matter  of  right.'     Where  a  rail- 
road company  has  provided  suitable  and  safe  means 
for  entering  and  alighting  from  its  trains,  and  where 
it  has  stopped  its  train  in  a  proper  position  to  enable 
passengers  to  avail  themselves  of  these  means  in  en- 
tering and  alighting,  it  is  not  bound  to  render  a  fe- 
male passenger,  accompanied  by  two  small  children, 
personal  assistance  in  alighting.'     The  same  principle 
applies  to  street  cars.     Where  a  street  car  stops  for 
passengers  to  alight,  if  there  is  a  rush  of  passengers 
to  get  oft",  crowding  and  jostling  each  other,  it  may  be 
the  duty  of  the  conductor  to  use  reasonable  efforts  to 
check  it,  to  the  end  that  passengers  may  not  be  in- 
jured or  unnecessarily  interfered  with  in  their  getting 
off;   but  it  is  not  his  duty  to  assist  specially  any  one 
of  the  well,  able-bodied  passengers,  unless  he  sees  that 
one  to  be  in  special  danger,  or  in  some  measure  un- 
able to  take  care  of  himself."* 

§  (K).    1  Detroit  &  M.  R.  Co.  v.  Curtis  (1868)  23  Wis.  152. 

2  Yarnell  v.  Railway  Co.,  113  Mo.  570,  21  S.  W.  1. 

3  Raben  v.  Railway  Co.,  74  Iowa,  732.  34  X.  W.  621. 

4  Jariny  v.  Railway  Co.,  55  :Minn.  271,  56  N.  W.  813.  A  street-rail- 
way company  is  not  liable  for  injuries  to  a  passenger  while  alight- 
ing, caused  by  the  pushing  and  jostling  of  other  passengers,  and  by 
a  passenger  stepping  on  her  dress,  where  the  conductor  was  on  the 
ground  at  the  time,  lifting  the  injured  passenger's  child  from  the 
car.     Furgason  v.  Railroad  Co.  (Ind.  App.)  44  N.  E.  936. 

(140) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    60 

In  the  followino:  cases  the  duty  of  furnishing  per- 
sonal assistance  was  held  to  exist.  Failure  to  furnish 
a  female  passenger  personal  assistance  in  alighting, 
after  bringing  the  train  to  a  standstill  beyond  the 
platform,  is  sufficient  to  take  the  case  to  the  jury  on 
the  question  of  defendant's  negligence.^  So,  in  the 
absence  of  a  platform  at  a  station,  the  company  is 
bound  to  afford  other  accommodations  to  a  passenger 
arriving  in  the  nighttime,  or  give  her  due  assistance 
in  descending  from  the  carriage."  While  a  railroad 
company  does  not  owe  a  passenger  the  duty  of  per 
sonal  assistance  in  alighting  if  a  safe  platform  has 
been  provided,  yet  the  failure  so  to  do  is  evidence  o'f 
negligence,  where  it  requires  passengers  to  alight  by 
means  of  a  stool,  which  may  be  overturned  by  a  step 
on  the  edge.'     And  where  a  female  passenger,  not  ex- 

5  Robson  V.  Railway  Co.,  2  Q.  B.  Div.  85;  Alleuder  v.  Railroad 
Co..  4.3  Iowa,  276;  Memphis  &  C.  R.  Co.  t.  Whitlielcl,  44  Miss.  4G<). 
Where  a  train  leaves  a  station  before  an  intending  passenger  nns 
time  to  get  on  board,  and  stops  at  a  place  where  the  passenger  is  un- 
able to  board  it  without  assistance,  and  she  is  invited  to  enter  the 
car  at  this  place,  it  is  the  duty  of  the  employes  of  the  railway  com- 
pany to  assist  her  in  boarding  the  train:  and  the  company  will  be 
liable  for  their  negligence  in  performing  this  duty.  Western  &  A. 
R.  Co.  V.  Voils  (Ga.)  2(5  S.  E.  483. 

6  McGinney  v.  Railway  Co.,  7  Man.  151.  In  this  case  a  femali' 
passenger,  alighting  from  a  train  at  night  at  a  place  where  there 
was  no  platform,  was  lifted  from  the  train  by  a  brakeman;  but 
Bhe  was  a  rather  heavy  person,  and  the  weight  of  her  body  on 
her  knee  in  alighting  caused  a  recurrence  of  synovites,— a  disease 
with  which  she  had  theretofore  been  afllicted.  Held,  that  defend- 
ant was  guilty  of  no  negligence  which  would  render  it  liable  for 
the  injury. 

-  Missomi  Pac.  Ry.  Co.  v.  Wortham.  73  Tex.  25,  10  S.  W.  741. 
Where  a  conductor  requires  a  female  passenger  to  get  off  a  car 

(U7) 


§    GO  CARRIERS   OF  PASSENGERS.  {Ch.   4 

perienced  in  railroad  travel,  is  directed  by  the  ticket 
agent  to  get  on  a  train  standing  several  hundred  feet 
from  the  depot  platform,  three  tracks  intervening,  the 
question  whether  the  company  owed  her  the  duty  of 
assisting  her  to  the  train  is  one  of  fact  for  the  jury.^ 

In  some  instances,  however,  the  courts  have  gone 
further,  and  have  seemingly  held  that  it  is  the  com- 
pany's duty  to  furnish  assistance  in  all  cases,  or,  at 
least,  that  the  question  whether  it  is  negligent  in  fail- 
ing so  to  do  is  for  the  jury  in  all  cases.  Thus  in  a 
South  Carolina  case  it  was  expressly  held  that  it  is  for 
the  jury  to  determine  whether  a  conductor  is  guilty 
of  negligence  in  failing  to  assist  a  lady  passenger  in 
alighting  at  her  destination.^  So,  in  Texas,  it  has 
been  held  that,  since  it  is  the  duty  of  a  railway  com- 
pany to  exercise,  the  highest  degree  of  care  for  the 
safety  of  its  passengers  in  alighting  from  its  cars,  it 
is  for  the  jury  to  determine  whether  such  care  in- 
cludes the  duty  of  assisting  a  woman  laden  with 
bundles  in  alighting  from  the  train. ^°  In  valuing 
these  decisions,  it  should  be  remembered  that  both  in 

which  she  has  boarded,  and  to  walk  to  another  car  not  drawn  up 
at  the  station  platform,  and  a  brakeman  jerks  her  up  the  steps  of 
that  car  with  such  violence  as  to  injure  her  back,  the  company  is 
liable.  International  &  G.  N.  R.  Co.  v,  Mulliken  (Tex.  Civ.  App.) 
32  S.  W.  152. 

8  Allender  v.  Railroad  Co.,  37  Iowa,  264. 

8  Simms  V.  Railway  Co.,  27  S.  C.  268,  3  S.  E.  301.  The  jury  may 
take  into  consideration  the  failure  of  the  conductor  to  assist  a  lady 
passenger  to  alight  from  a  train,  in  connection  with  the  other  cir- 
cumstances, in  determining  whether  the  railway  company  was  neg- 
ligent in  furnishing  proper  means  for  her  to  alight.  Brodie  v.  Rail- 
way Co.  (S.  C.)  24  S.  E.  180. 

10  Texas  &  P.  Ry.  Co.  v.  Miller,  79  Tex.  78,  15  S.  W,  264. 

(148) 


Ch.   4}  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    01 

Texas  and  South  Carolina  the  inference  of  negligence 
is  for  the  jury  in  all  cases.''  In  a  Virginia  case  this 
lauiiuaae  is  used:  "The  care  and  attention  which  the 
carrier  is  bound  to  use  in  assisting  passengers  to 
alight  from  his  train  depends  upon  the  necessity  they 
are  under  for  assistance;  as,  for  instance,  where  the 
passenger  is  aged  or  decrepit,  or  a  child,  or  a  female 
unattended  and  helpless.  In  the  present  case  the  rail- 
way company  was  called  upon,  by  every  consideration 
of  duty  and  humanity,  to  exercise  the  highest  degree 
of  vigilant  care  for  the  safety  of  the  passenger.  A 
fine  snowstorm  was  raging.  The  platforms  of  the  cars, 
and  the  steps  leading  therefrom,  were  necessarily 
covered  with  snow,  and  rendered  dangerous,  especial- 
ly to  an  unattended  female  passenger,  as  was  this  one. 
Yet  she  received  no  assistance,  no  attention  Avhatever, 
and  was  permitted  to  walk  forth  into  the  blinding 
snowstorm,  and  to  encounter  all  the  perils  of  the  situ- 
ation, her  knowledge  of  which,  and  her  capacity  t:) 
avoid  them,  were  almost  as  nothing  compared  to  thos:' 
of  the  company's  servants,  who  were  present,  and 
charged  with  the  duty,  but  did  nothing  to  aid  her  in 
her  position  of  peril." '^ 

§  61.     SAME— MOVING     TRAINS    ON     INTERVENING 

TRACKS. 

It  is  a  question  for  the  jury  whether  or  not  a  rail- 
road company  is  guilty  of  negligence  in  running  a 
train  at  a  high  rate  of  speed  past  its  station,  at  which 

11  See  ante.  §  28. 

1^  AlfXiindria  &  F.  li.  Co.  v.  Ueiudon,  87  Va.  193,  12  S.  E.  289. 

(14!)) 


§    (31  CARRIERS  OF  PASSENGERS.  (Ch.   4 

another  train  is  receiving  and  discharging  passengers, 
who  are  compelled  to  cross  the  track  of  the  moTing 
train  in  going  to  and  from  the  station/  It  maj  be  as- 
sumed that  a  railroad  corporation,  in  the  exercise  of 
ordinary  care,  so  regulates  the  running  of  its  trains 
that  the  road  is  free  from  interruption  or  obstruction 
while  passenger  trains  stop  at  a  station  to  receive  and 
deliver  passengers.-  Failing  in  this,  its  employes 
should  at  least  give  ample  warning  of  the  approach- 
ing train. ^  The  running  of  a  railroad  train  at  a  high 
rate  of  speed,  at  an  unusual  hour,  and  without  warn- 
ing, past  a  train  standing  at  a  platform,  discharging 
its  passengers,  who,  to  reach  their  destination,  must 
cross  the  track  of  the  moving  train,  is  negligence.* 

§  61.  1  Tubbs  y.  Railroad  Co.  (Mich.)  64  X.  W.  lOiU;  Baltimore  & 
O.  R.  Co.  V.  State,  81  Md.  371,  32  Atl.  201.  As  to  coutributory  negli- 
gence of  passengers  in  crossing  tracks  in  front  of  moving  trains, 
see  post,  §§  136-139. 

2  Terry  v.  Jewett,  78  N.  Y.  338,  affirming  17  Hun  (N.  Y.)  395. 

8  Denver  &  R.  G.  R.  Co.  v.  Hodgson,  18  Colo.  117,  31  Pac.  954. 

*  Robos'telli  v.  Railroad  Co.,  33  Fed.  796.  To  the  same  effect,  see 
Armstrong  v.  Railroad  Co.,  66  Barb.  437,  affirmed  in  64  N.  Y.  635; 
Hirsch  v.  Railroad  Co.,  53  Hun,  633,  6  N.  Y.  Supp.  162;  Gonzales 
V.  Railroad  Co.  (1870)  39  How.  Prac.  (N.  Y.)  407,  reversing  1  Sweeny 
(N.  Y.)  506;  Chicago,  B.  &  Q.  R.  Co.  v.  Czaja,  59  111.  App.  21;  Dal- 
las &  O.  C.  Ry.  Co.  V.  Reeman  (Tex.  Civ.  App.)  32  S.  Vi.  45.  The 
question  whether  a  railroad  company  is  guilty  of  negligence  in  kick- 
ing a  freight  car,  detached  from  the  engine,  in  front  of  its  passen- 
ger depot  while  passengers  are  in  waiting  there,  so  that  it  strikes 
a  passenger  crossing  the  track  on  his  way  to  the  train,  is  one  of 
fact  for  the  jury.  Hempenstall  v.  Railroad  Co.,  82  Hun,  285,  31 
N.  Y.  Supp.  479.  The  same  principle  has  been  applied  to  street 
cars.  At  the  junction  of  a  cable  and  an  electric  street  railway,  the 
accumulated  snow  had  been  banked  by  the  company  to  the  height 
of  four  or  five  feet  along  the  tracks,  and  passengers  who  were  trans- 
(150) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    Gl 

So,  to  run  a  train  at  a  speed  of  25  miles  an  hour  past  a 
depot  on  a  track  across  which  passengers  for  a  train 
of  another  railroad  company  have  to  go  is  negligence.* 
It  is  a  question  for  the  jury  whether  a  railroad  com- 
pany is  liable  for  the  death  of  a  passenger,  who  was 
lighted  off  the  steps  by  the  conductor  while  the  train 
was  still  slowly  moving,  and  who  was  struck  by  an- 
other train  on  a  parallel  track  as  soon  as  he  touched 
the  ground.^      This  principle  does  not,  however,  apply 
where  the  passengers  have  been  discharged,  and  the 
passenger  train  is  again  in  motion.     A  passenger  got 
off  the  train  on  the  side  away  from  the  depot,  and  in 
passing  over  another  track  was  struck  by  the  engine 
of  another  train,  which  was  moving  slowly.     Neither 
the  engineer  nor  the  fireman  saw  the  passenger,  and 
he  testified  that  he  did  not  see  the  train,  because  the 
steam  from  the  engine  on  his  own  train  obstructed  his 
vision.     The  train  from  which  he  alighted  had  already 
started  from  the  depot  at  the  time  of  the  accident.     It 
was  held  that  the  evidence  failed  to  show  any  negli- 

ferrcd  from  one  car  to  the  other  wore  accustomed  to  walk  along  the 
track  between  the  two  snow  walls  until  they  reached  the  car  they 
desired  to  take.  Held,  that  it  was  negligence  for  the  employes  of 
the  street  railway  to  back  an  electric  car  towards  the  cable  car, 
about  a  block  away,  with  both  conductor  and  motoneer  on  the  front 
end  of  the  electric  car,  when  they  both  knew  that  passengers  from 
the  cable  car  were  walking  along  the  track  towards  their  car. 
Cameron  v.  Trunk  Line,  10  Wash.  507,  3'J  Pac.  128. 

5  Chicago,  St.  V.  &  K.  C.  Ky.  Co.  v.  Hyan,  165  111.  88,  46  N.  E.  208, 
affirming  G2  111.  App.  264. 

«  McDonald  v.  Railway  Co.,  127  Mo.  38,  29  S.  W.  848;  Lewis  v. 
Canal  Co.,  145  N.  Y.  508,  40  N.  E.  248,  affirming  80  Hun,  1!»2.  30  N. 
Y.  Supp.  28. 

(151) 


§    61  CARRIERS  OF  PASSENGERS.  (Ch.   4 

gence  on  defendant's  part,  and  that  it  was  error  to 
submit  the  case  to  the  jury.^ 

The  decisions  of  the  English  courts  are  substantial- 
ly the  same  as  those  of  our  own.  A  passenger  at  a 
station  attempted  to  cross  the  rails  to  a  platform  on 
the  opposite  side  by  a  path  which  the  railway  com- 
pany had  always  allowed  passengers  to  use  for  that 
purpose.  While  in  the  act  of  crossing,  she  was  knock- 
ed down  and  killed  by  a  train,  which  had  been  sudden- 
ly, and  without  any  warning,  driven  backward  along 
the  line  of  rails  which  she  was  crossing.  It  was  held 
that  the  jury  was  warranted  in  finding  defendant 
guilty  of  negligence.^  A  decision  of  one  of  the  Irish 
courts  seems,  however,  to  be  somewhat  at  variance 
from  our  own.  A  passenger's  train  was  shunted,  on 
a  dark  night,  in  his  absence,  to  an  unusual  siding,  out 
of  sight  of  the  platform.  While  crossing  the  main 
line,  going  in  the  direction  of  the  station  master's  of- 
fice, presumably  to  make  inquiry  as  to  his  train,  the 
passenger  was  struck  and  killed  by  another  train.  It 
was  held  that,  though  there  was  no  accommodation 
by  a  bridge  for  the  passenger,  and  no  servant  at  hand 
to  direct  him,  there  was  no  evidence  of  negligence 
which  would  warrant  the  submission  of  the  case  to 
the  jury.^ 

7  Goia])erg  V.  Railroad  Co.,  133  N.  Y.  oOl.  :!0  N.  E.  nOT.  reversing  60 
Hun.  n.sc:,  15  N.  Y.  Supp.  579. 

8  Rogers  v.  Railway  Co.,  2G  Law  T.  (N.  S.)  879.  In  an  action  by 
one  run  over  by  a  train  while  crossing  a  railroad  track  near  a  sta- 
tion on  her  way  to  take  a  train,  the  fact  that  the  company  per- 
mitted the  gates  at  the  crossing  to  be  open,  and  the  gate  keeper  to 

9  Falkiner  v.  Railway  Co.,  Ir.  R.  5  C.  L.  213. 


Ch.   4)  DUTY    AS   TO    KECEIVING    AND    DISCHAKGING.  §    02 

§  62.     SAME— EXISTENCE     OF     SAFE     AND     UNSAFE 

EXIT. 

A  railway  company  has  not  discharged  its  whole 
duty  to  the  passenger  when  it  has  provided  a  safe  exit 
from  its  cars,  while  at  the  same  time  there  exists  an- 
other way  which  is  not  safe,  and  which  is  in  such  gen- 
eral use  by  its  passengers  as  to  induce  the  belief  that 
it  is  permitted,  in  part,  at  least,  for  that  purpose.' 
Hence  where  a  railroad  company  makes  provision  on- 
ly on  one  side  of  its  track  for  passengers  to  leave  its 
cars,  and  it  is  dangerous  to  leave  on  the  other  side,  it 
is  a  question  for  the  jury  whether  it  is  negligence  in 
the  company  not  to  have  provided  some  means  to  pre- 
vent passengers  from  leaving  on  the  wrong  side,  or 
to  notify  them  not  to  do  so.^  A  railroad  company 
which,  with  full  knowledge  of  tlie  facts,  permits  a 
dangerous  and  unsafe  way  to  be  used  by  passengers 
in  going  to  and  from  its  stations  and  trains,  is  liable 
for  injuries  to  passengers  caused  by  defects  in  the 
way,  though  it  has  provided  another  way  which  they 

be  absent,  is  evidence  of  negligence.  Stapley  v.  Railway  Co.,  L. 
R.  1  Excli.  21. 

§  6-J.     1  Missouri  Pac.  Ry.  Co.  v.  Long,  81  Tex.  253.  10  S.  W.  1016. 

2  McKimble  v.  Railroad.  139  Mass.  542,  2  N.  B.  97;  Van  Ostran 
V.  Railroad  Co.,  35  Hun,  .590.  Though  a  railroad  company  has  pro- 
vided a  safe  platform  by  which  passengers  may  leave  the  train,  yet 
where  there  is  also  a  platform  on  the  other  side  which  passengers 
have  also  been  accustomed  to  use  for  that  purpose,  it  is  the  com- 
pany's duty  to  warn  passengers  alighting  on  that  side  of  dangers 
which  they  may  encounter  by  so  doing,  if  such  dangers  are  not  ap- 
parent. Illinois  Cent.  R.  Co.  v.  Davidson,  22  C.  C.  A.  300.  70  Fed. 
517. 


§    62  CARRIERS   OF  PASSENGERS.  (Cll.    4 

might  have  used  with  safety.'  And,  though  tJae  com- 
pany has  provided  one  safe  and  convenient  way,  yet 
if  it  permits  the  maintenance  of  another  way  by  pri- 
vate persons,  which  has  every  indication  of  having 
been  provided  for  the  use  of  the  public,  a  strange  pas- 
senger, who  takes  the  private  way,  and  is  injured  by 
its  faulty  condition,  may  recover/  So  the  fact  that 
a  combination  passenger  and  baggage  car  is  furnished 
with  a  platform  and  steps  in  the  rear  does  not  release 
the  company  from  liability  for  injuries  to  a  passenger 
who  left  the  car  at  the  place  generally  used  by  pas- 
sengers,— the  side  door  of  the  baggage  compartment. "^ 

8  Delaware,  L.  &  W.  R.  Co.  v.  Trautwein.  52  N.  J.  Law,  109.  19 
Atl.  178;  Oldright  v.  Railway,  22  Ont.  App.  286;  Longmore  v.  Rail- 
way Co.,  19  C.  B.  (N.  S.)  183. 

4  Delaware,  L.  &  W.  R.  Co.  v.  Trautwein,  52  N.  J,  Law,  169,  19 
Atl.  178. 

5  Missouri  Pac.  Ry.  Co.  v.  Long,  81  Tex.  253,  16  S.  W.  1016.  In 
tliis  case  it  is  said:  "A  railway  company,  it  is  true,  is  not  bound  to 
see  that  its  passengers  act  in  a  prudent  manner,  or  to  use  physical 
means  to  compel  them  to  do  so.  But  when  its  servants  see  that 
its  passengers  are  in  the  habit  of  leaving  its  cars  by  a  door  not  pro- 
vided for  that  purpose,  it  would  seem  to  be  the  duty  of  such  ser- 
vants at  least  to  warn  them  that  there  is  another  door  which  they 
are  expected  to  use."  A  rule  of  a  railroad  company  requiring  the 
rear  door  of  the  rear  car  of  a  passenger  train  to  be  locked  while  at 
the  station  is  reasonable,  and  the  company  is  not  guilty  of  negli- 
gence in  keeping  the  door  locked,  as  to  a  passenger  who  boarded  the 
rear  end  of  the  last  car  with  knowledge  of  the  rule,  and  who  was 
injured  by  reason  of  his  inability  to  enter  the  car.  Missouri,  K. 
&  T.  Ry.  Co.  of  Texas  v.  Brown  (Tex.  Civ.  App.)  39  S.  W.  ajij.  In 
Nicholson  v.  Railway  Co.,  3  Hurl.  &  C.  534,  the  facts  were  these: 
A  railway  passenger  was  set  down  after  dark  on  the  side  of  the 
train  away  from  the  station  and  place  of  egress.  The  train  was 
detained  more  than  10  minutes  at  this  place,  and  from  its  length 
blocked  up  the  ordinary  crossing  to  the  station,  which  was  on  the 

(154) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    02 

An  early  Pennnsylvania  case  is,  however,  in  conflict 
with  these  decisions.  It  holds  that  a  railroad  com- 
pany which  provides  a  safe  platform  for  its  passen- 
gers on  one  side  of  its  train  is  not  liable  for  the  death 
of  a  passenger  who  gets  off  on  the  wrong  side,  and  is 
struck  by  an  engine  on  a  parallel  track;  and  the  fact 
that  passengers  were  accustomed  to  get  off  on  the 
wrong  side  is  immaterial.®  Certainly,  as  applied  to  a 
passenger  unacquainted  with  the  locality,  this  de- 
cision is  radically  unsound,  for  how  can  a  stranger 
know  that  he  is  not  taking  the  safe  way  when  two 
ways  are  open  to  him,  with  the  character  of  neither 
of  which  he  is  acquainted?  In  a  recent  case  the  su- 
preme court  of  Pennsylvania  again  held  that  a  railroad 
company  which  has  provided  a  safe  and  convenient 
means  of  ingress  and  egress  to  and  from  its  trains, 
upon  one  side  of  its  track,  has  in  this  particular  dis- 
charged its  whole  duty  to  passengers,  and  is  not  bound 
to  anticipate  that  they  will  alight  on  the  opposite  side; 
and  hence  a  passenger  who,  in  the  nighttime,  with 
knowledge  of  the  facts,  purposely  gets  off  on  the  side 
having  no  platform,  cannot  recover  for  injuries  sus- 
tained by  falling  into  an  unguarded  excavation  made 

level.  The  ticket  collector  stood  near  the  crossing,  with  a  light, 
telling  the  passengers,  as  the>  delivered  their  tickets,  to  pass  on. 
A  passenger  passed  down  the  train,  to  cross  behind  it,  and  from  the 
want  of  light  stumbled  over  some  hampers  put  out  of  the  train,  and 
was  injured.  The  practice  of  passengers  had  been  to  cross  behind 
the  train,  when  long,  without  interference  from  the  railroad  com- 
pany. Held,  that  these  facts  disclosed  negligence  on  the  part  of  the 
company. 
«  remisylvauia  R.  Co.  v.  Zebe,  33  I'a.  St.  'SIS,  37  Ta.  St.  420. 

(155) 


§    62  CARRIERS   OP  PASSENGERS.  (Oil.   4 

by  the  railroad  company.'  So,  the  court  of  appeals 
of  Kentucky  has  recently  held  that  when  a  railroad 
company  has  a  platform  and  other  facilities  for  enter- 
ino-  and  leaving-  the  cars  in  safety  on  the  depot  side  of 
the  track,  the  failure  to  have  the  opposite  likewise 
prepared  as  a  place  for  entering  and  leaving  the  cars 
cannot  be  regarded  as  negligence.  It  may  select  and 
adhere  to  such  arrangement  of  its  depot  and  platform 
as  it  may  see  fit,  if  those  are  made  safe  and  commodi- 
ous. Nor  is  a  railroad  company  required  to  so  light 
tlie  depot  side  of  its  platform  as  to  admonish  pas- 
sengers that  that  platform  is  exclusively  used  for  pas- 
sengers. That  would  require  the  other  side  of  the 
track  to  be  lighted,  so  as  to  admonish  the  passengers 
that  it  was  not  used  for  passengers  at  all.  All  that  is 
required  is  that  it  should  be  so  lighted  as  that,  by  the 
exercise  of  ordinary  care,  the  passengers  can  ascer- 
tain that  it  is  the  platform  used  for  passengers.  The 
other  side,  not  being  lighted  at  all,  is  notice  that  it  is 
not  so  used.^ 

Of  course,  as  to  passengers  acquainted  with  the 
dangerous  character  of  the  way,  a  warning  or  notice 
not  to  use  it  is  useless,  and  the  company  is  not  charge- 
able with  negligence  in  failing  to  give  it.  It  has  ac- 
cordingly been  held  in  other  states  that,  where  a  rail- 
road company  has  a  platform  and  other  facilities  for 
entering  and  leaving  its  cars  with  safety  on  the  depot 
side  of  the  track,  the  failure  to  have  the  opposite  side 
likewise  prepared  as  a  place  for  entering  and  leaving 

^  Drake  v.  Railroad  Co..  137  Pa.  St.  352,  20  Atl.  994. 
8  Lcniisville  &  N.  R.  Co.  v.  Ricketts  (Ky.)  37  S.  W.  952. 
(15G) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    03- 

the  cars  cannot  be  regarded  as  neglioence,  as  to  a  pas- 
senger who  knows  the  facts,  and  who  purposely  leaves 
the  train  on  the  wrong  side,  to  save  himself  a  short 
walk.^ 

§  63.     SAME— FREIGHT  TRAINS. 

A  railroad  company  may  require  passengers  desir- 
ing to  travel  on  one  of  its  freight  trains  to  enter  or 
leave  the  coach  at  a  point  on  the  depot  grounds  other 
than  the  station  platform,  where  the  way  between  the 
station  house  and  the.  point  of  embarkation  is  kept  in 
proper  condition.'     It  is  not  to  be  expected  that  there 
will  be  the  same  particularity  in  drawing  a  freight 
train  up  to  a  station  as  a  train  devoted  to  passenger 
service.      The  great  length  and  weight  of  such  trains, 
and  the  appliances  necessary  in  their  operation,  ren- 
der them  less  easy  of  control.'     But  when  a  freight 
train  is  not  drawn  up  to  a  station  platform,  passen- 
gers are  entitled  to  receive  such  care  and  attention  as 
are  necessary  to  enable  them  to  properly  reach  the 
station;    and  this  is  especially  so  where  the  place  at 
which  they  are  discharged  is  either  inappropriate  or 
inconvenient.^'     And  to  stop  a  freight  train  carrying 
passengers,  on  a  dark  night,  in  such  a  manner  that  a 
cattle  guard  intervenes  between  the  station  i^latform 

0  Louisville  &  N.  R.  Co.  v.  Kicketts.  93  Ky.  IIG,  19  S.  \V.  1S2; 
Michigan  Cent.  R.  Co.  v.  Coleman,  2S  Mich.  44U. 

§  (53.  1  Browne  v.  Railroad  Co.,  lOS  N.  C.  34,  12  S.  E.  '.tr.S;  Heni- 
mingway  v.  Railway  Co.,  G7  Wis.  668,  31  N.  W.  208;  Hays  v.  Kail- 
way  Co.,  51  Mo.  Api).  438. 

2  Chicago  &  A.  R.  Co.  v.  Arnol,  144  111.  261.  33  N.  E.  204. 

3  New  York,  C.  &  St.  L.  Ry.  Co.  v.  Doane,  113  lm\.  43.5.  440.  17 

N.  E.  913. 

(157) 


R    (34  CARRIERS  OF  PASSENGERS.  (Cll-    4 

and  the  caboose,  is  negligence,  which  renders  the  com- 
pany liable  for  injuries  sustained  by  a  passenger  on 
his  way  to  the  caboose,  who  fell  into  the  cattle  guard, 
of  the  existence  of  which  he  was  ignorant/     Where 
stockmen  accompanying  their  stock  to  market  are  re- 
quired to  change  from  one  train  to  another,  the  com- 
pany is  bound  to  use  reasonable  care  in  providing 
them  with  a  safe  opportunity  of  alighting  from  the 
train  in  which  they  are,  and  entering  the  other,  in 
which  they  are  to  continue  the  trip;   and  if  they  are 
induced  by  the  conductor  to  enter  a  place  of  danger, 
and  are  injured  without  the  want  of  due  care  on  their 
part,  the  company  is  liable.'* 

§  64.     SAME— STREET  CARS. 

A  street-car  company,  receiving  and  discharging 
passengers  in  the  public  streets,  manifestly  cannot  be 
held  to  as  strict  an  accountability  to  furnish  a  safe 
place  for  entering  and  leaving  its  cars  as  is  an  ordi- 
nary steam  railroad,  which  has  absolute  ownership 
and  control  of  its  stational  facilities.  All  that  can  be 
required  of  the  street-railway  company  is  that  it  ex- 
ercise proper  care  in  the  selection  of  the  places  at 
which  it  receives  and  discharges  passengers,  and,  hav- 
ing exercised  care  in  this  respect,  it  is  not  in  legal 
fault  if  the  place  proves  unsafe.'     This  duty  to  select 

*  Hartwig  v.  Railway  Co.,  49  Wis.  358,  5  N.  W.  8G5. 

c  Chicago  &  A.  R.  Co.  v.  Winters,  65  111.  App.  435. 

§  G4.     1  Conway  v.   Railroad  Co.,  87  Me.  283,  32  Atl.  901,   citing 
Middlesex  R.  Co.  v.  Wakefield,  103  Mass.  201,  and  Creamer  v.  Rail- 
way Co.,  156  Mass.  320.  31  N.  E.  391. 
(158) 


Ch.   4)  DUTY    AS    TO    Rr:CKlVING    AND    DISCHARGING.  §    6^ 

a  safe  landing  place  requires  only  that  the  place  be 
safe  for  passengers  who  alight  while  the  car  is  at 
rest,  and  not  when  in  motion;   nor  does  it  apply  to  a 
pi  ace  where  the  car  stops  because  of  an  obstruction  on 
the  track,  and  not  for  the  purpose  of  discharging  pas- 
sengers.-    It  is  not  negligence  on  the  part  of  the  ser- 
yauts  of  an  electric  street-car  company  to  stop  the  car, 
in  broad  daylight,  in  the  usual  manner,  opposite  a 
place  where  the  street  paving  has  been  removed,  leav- 
ing an  excavation  about  six  inches  deep;   and  a  pas- 
senger who  is  injured  in  alighting,  without  looking  to 
see  where  she  is  stepping,  cannot  recover,  since,  in 
considering  the  question  of  the  negligence  of  defend- 
ant's servants,  it  must  be  taken  that  they  "had  a  right 
to  assume  that  plaintiff  would  look,  and  take  heed  un- 
to her  steps.''  '     But  it  has  been  held  that  stopping  a 
street  car  so  that  a  little  embankment  of  sod  is  within 
seven  or  eight  inches  of  the  running  board  is  evidence 
of  negligence,  in  an  action  by  a  fjassenger  who  was 
injured  in  stepping  between  the  embankment  and  the 
car.*     And  unquestionably  a  street  railroad  is  guilty 
of  negligence  in  stopping  its  car  in  the  nighttime,  with 
the  car  steps  protruding  over  an  excavation  in  the 
street,  without  warning  a  passenger  about  to  alight 
of  the  danger.^     So  it  is  negligence  in  a  street-railway 
company  to  run  its  car  past  the  usual  stopping  place, 
and  thus  compel  an  intending  passenger  to  walk  in 

2  Augusta  Ry.  Co.  v.  Glover,  92  Ga.  132,  18  S.  E.  406. 

3  Bigelow  V.  Railway  Co.,  IGl  Mass.  393,  37  N.  E.  367. 

4  Poole  V.  Railway  Co..  100  Mich.  379.  .-)9  N.  W.  390. 

6  Richmoud  City  Ry.  Co.  v.  Scott,  SO  Va.  902,  11  S.  E.  404. 

(159) 


§    64  CARRIERS   OF  PASSENGERS.  {Ch.  4 

the  dark  along  an  elevated  track,  without  a  railing, 
in  order  to  reach  the  car/ 

The  jury  may  tind  the  driver  of  a  street  ear  guilty 
of  negligence  in  compelling  a  female  passenger  to 
leave  the  car  in  a  crowded  street,  where  a  fire  appara- 
tus, driven  rapidly  on  the  car  track  in  the  same  direc- 
tion, is  only  15  or  20  feet  behind  the  car  when  it  stops/ 
But  where  a  passenger  is  thrown  while  attempting  to 
board  a  street  car,  and  falls  on  a  parallel  track,  and 
is  there  run  over  by  another  car  going  in  the  opposite 
direction,  the  company  is  not  liable  if  the  driver  of 
tliat  car  took  all  the  measures  that  an  ordinarily  pru- 
dent man  would  have  taken  to  prevent  the  collision.^ 

But  where  a  street-railroad  company  contracts  with 
a  city,  as  a  consideration  for  its  franchise,  to  keep  a 
portion  of  the  streets  in  good  order  and  repair,  any 
one  who  suffers  special  damages  from  its  breach  of 
contract  may  recover  against  it  in  a  direct  action,-  -in 
this  case,  a  passenger  who,  in  stepping  from  a  slowly- 
moving  car,  caught  his  foot  in  a  hole  in  the  crosswalk, 
and  was  thrown  to  the  ground/ 

6  Vasele  v.  Railway  Co.  (Wash.)  48  Pac.  249. 

7  Maverick  v.  Railroad  Co.,  3<)  N.  Y.  378. 

f>  Pallez  V.  Railroad  Co.  (Sup.)  4  N.  Y.  Siipp.  384.  affirmed  123  N. 
Y.  (i52.  25  N.  E.  954.  Where  a  street  car  stops  at  a  transfer  station 
and  passengers  are  invited  to  enter  on  both  sides  of  the  car,  a  motor- 
man  on  an  approaching  car  on  a  parallel  track,  seeing  passengers 
enter  the  stationary  ear,  is  bound  to  exercise  more  care  than  when 
passing  another  car  in  motion,  and  particularly  is  this  true  when 
he  knows  that  the  company  invites  passengers  to  enter  on  tlie  sides 
of  the  ear  near  his  track.  Gaffney  v.  Railroad  Co.,  6  Ml-sc.  Rep.  1, 
25  N.  Y.  Supp.  996. 

9  Ober  V.  Railroad  Co.,  44  La.  Ann.  1059,  11  South.  818. 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    65 


§  65.     SAME— VESSELS. 

Common  carriers  bv  water,  as  Avell  as  by  land,  are 
bound  to  provide  reasonably  safe  means  of  exit  for 
passengers  using  due  care.^  A  steamboat  proprietor, 
who  uses  a  gang  ])lank  only  a  little  over  two  feet  wide, 
while  the  gangway  on  the  boat  is  over  four  feet  wide, 
is  bound  to  warn  passengers  leaving  the  boat  at  night, 
either  by  light  or  otherwise,  of  the  narrowness  and  lo- 
cation of  the  gang  plank. ^  A  steamboat  owner,  who 
departs  from  the  ordinary'  and  proper  method  of  land- 
ing his  passengers,  and  who  compels  them  to  jum]) 
from  the  boat  in  motion,  is  responsible  for  injuries 
sustained  by  passengers  in  so  doing. ^  It  is  negligence 
in  the  employes  of  a  ferry  company  to  order  teams  to 
pass  off  its  ferryboat  before  the  bridge,  prepared  for 
that  purpose,  is  properly  adjusted;  and  where,  in  con- 
sequence of  such  nonadjustment,  a  horse  attached  to 
a  heavily  loaded  cart  slips  and  falls,  causing  tlie  cart 
to  strike  and  injure  a  passenger,  the  company  is  li- 
able.^     The  letting  down  of  the  chains  which  guard 

§  65.  1  Seanlan  v.  Teiiney,  72  Fed.  225;  :\lMgoric  v.  Little,  25  Fed. 
027. 

-  Scauliin  V.  Tenney,  72  Fed.  225.  "Where  a  stranger  using  a  ferry 
after  night  is  directed  by  a  watchman  in  cliarge  to  take  a  certain 
direction,  and,  while  following  tliat  direction,  is  injured,  witliout 
fault  of  his,  by  a  passing  train,  the  proprietors  of  the  ferry  are 
liable.    Magoric  v.  Little,  25  Fed.  627. 

8  Cameron  v.  MlUoy.  14  U.  C.  C.  P.  :i40. 

*  Hazman  v.  Improvement  Co.,  50  N.  Y.  53,  artirmlng  2  Daly  (N. 
Y.)  130.  It  is  negligence  in  the  employes  of  a  ferry  company  to 
open  the  doors  of  a  crowded  waiting  room  while  heavy  tracks  are 
being  driven  rapidly  from  the  boat,  and  the  company  is  liable  for 

V.  1  FET.CAR.PAS. 11  (IGl) 


§    65  CARRIERS   OF   PASSENGERS.  (Ch.   4 

the  passage  from  a  ferryboat  to  the  bridge,  by  one  of 
the  servants  of  the  ferry  company,  before  the  boat  is 
properly  secured  to  the  bridge,  is  an  act  of  negligence, 
which  will  render  the  company  liable  for  injuries  to  a 
passenger,  who,  in  alighting,  steps  into  the  open  space 
between  the  boat  and  the  bridge.'  It  is  negligence  for 
a  deck  hand  of  a  steamer  to  let  go  a  barrel  of  sugar  on  a 
gang  plank  considerably  inclined  towards  the  shore, 
and  the  boat  owners  are  liable  for  injuries  to  a  pas- 
senger leaving  the  boat,  who  was  struck  by  the  bar- 
rel." 

the  death  of  a  passenger  who  was  pushed  by  the  waiting  crowd 
into  the  vehicle  roadway,  and  run  over  by  a  truclc  leaving  the  boat. 
Tonkins  v.  Ferry  Co.,  47  Hun,  562. 

5  Ferris  v.  Ferry  Co.,  36  N.  Y.  312.  Common  carriers  of  pas- 
sengers by  a  ferryboat  do  not  perform  their  whole  duty  by  maliing 
regulations  forbidding  passengers  to  leave  the  boat  until  the  guard 
chains  before  the  several  gangways  are  lowered.  It  is  their  duty 
to  enforce  the  rules,  and  they  are  guilty  of  negligence  in  permitting 
tliem  to  be  habitually  violated.  The  Manhasset,  19  Fed.  430.  But 
the  mere  fact  that  a  chain  on  a  ferryboat,  used  to  prevent  the  pi-e- 
niature  egress  of  passengers,  has  been  removed  before  the  boat 
reached  the  landing  place,  is  not  evidence  of  negligence  on  the  part 
of  the  owners  of  the  ferryboat;  and  they  are  not  liable  to  a  pas- 
senger for  injuries  sustained  in  attempting  to  alight  in  the  dark, 
where  the  servant  charged  with  the  duty  of  removing  the  chain  tes- 
tifies, without  contradiction,  that  he  did  not  remove  the  chain,  and 
it  appears  that  there  was  a  crowd  of  passengers  on  the  boat,  some 
of  whom  had  pressed  forward  and  left  the  boat  ahead  of  plaintiff. 
Joy  V.  Winnisimmet  Co.,  114  Mass.  63. 

«  Julien  V.  The  Wade  Hampton,  27  La.  Ann.  377. 
(1G2) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    66 


5  66.     REASONABLE  TIME  TO  GET  ON  AND  OFF. 

A  coramon  carrier  by  railroad  must  stop  his  train 
at  stations  a  sufB.cient  length  of  time  to  enable 
passengers  to  get  on  and  off  in  the  exercise  of 
ordinary  diligence. 

The  carrier's  duty  as  to  the  time  he  must  give  pas- 
sengers to  get  on  and  off  trains  has  been  announced 
in  terms  similar  to  the  above  in  very  many  cases.^ 
What  is  a  reasonable  length  of  time  is  generally  a 
question  for  the  jury,-  but  the  stop  may  be  so  long  or 

§  66.  1  St.  Louis,  1.  M.  &  S.  Ry.  Co.  v.  Person,  49  Ark.  182,  4  S.  W. 
755;  Little  Rocli  &  Ft.  S.  Ry.  Co.  v.  Taukersley,  54  Ark.  25,  14  S.  W. 
lO'JO;  Carr  v.  Railroad  Co.,  98  Cal.  366,  33  Pac.  213;  Atlanta  & 
W.  P.  R.  Co.  V.  Smith,  81  Ga.  620,  8  S.  E.  446;  Savannah,  F.  &  W. 
Ry.  Co.  V.  Watts,  82  Ga.  229,  9  S.  E.  129;  Chicago  &  A.  R.  Co.  v. 
Aruol,  144  111.  261,  33  N.  E.  204;  Toledo,  W.  &  W.  Ry.  Co.  v.  Badde- 
ley,  54  111.  19;  Chicago  &  A.  R.  Co.  v.  Byrum,  48  111.  App.  41;  Illinois 
Cent.  R.  Co.  v.  Taylor,  46  111.  App.  141:  Ohio  &  M.  Ry.  Co.  v. 
Smith,  5  Ind.  App.  560,  32  N.  E.  809;  Jeffersonville,  M.  &  I.  R.  Co. 
V.  Parmalee,  51  Ind.  42;  Lehman  v.  Railroad  Co.,  37  La.  Ann.  705: 
Swigert  v.  Railroad  Co.,  75  Mo.  475;  Richmond  v.  Railway  Co.,  49 
Mo.  App.  104;  Murphy  v.  Rome,  W.  &  O.  R.  Co.,  56  Hun,  645,  10 
N.  Y.  Supp.  354;  Fairmount  &  A.  St.  P.  Ry.  Co.  v.  Stutler,  54  Pa. 
St.  375;  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Viney  (Tex.  Civ.  App.)  30 
S.  W.  252;  Detroit  &  M.  R.  Co.  v.  Curtis,  23  Wis.  152;  McSloop  v. 
Railroad  Co.,  59  Fed.  431.  A  South  Carolina  statute  requires  rail- 
road companies  to  entirely  stop  passenger  trains  at  stations  where 
they  are  advertised  to  stop,  for  a  time  sufficient  to  receive  and  let 
off  passengers.    Rev.  St.  S.  C.  1893,  §  1687. 

2  McSloop  V.  Railroad  Co.,  59  Fed.  431;  Dickens  v.  Railroad  Co., 
1  Abb.  Dec.  504,  40  N.  Y.  23.  Where  there  is  a  conflict  in  the  evi- 
dence as  to  whether  the  train  stopped  only  from  10  to  20  seconds, 
or  whether  it  stopped  a  minute,  while  from  10  to  15  passengers  got 
off,  the  question  of  defendant's  negligence  is  for  the  jury.  Penn- 
sylvaula  R.  Co.  v.  Lyons,  129  Pa.  St.  113,  18  Atl.  759. 

(1G3) 


§    66  CARRIERS   OP  PASSENGERS.  (Ch.    4 

SO  short  as  to  enable  tbe  court  to  decide  the  question 
as  matter  of  law.  Thus  the  court  will  take  judicial 
notice  that  ordinarily  the  stop  of  a  passenger  train  for 
three  minutes  at  a  station,  for  the  purpose  of  allowing 
passengers  to  get  on  or  off  the  train,  is  reasonable  and 
adequate,  and  if  any  special  reason  exists  in  a  given 
case  requiring  a  longer  stop,  such  reason  should  be 
shown;  otherwise  a  passenger  who  is  injured  by  the 
sudden  starting  of  the  train,  after  such  a  stop,  while 
he  is  attempting  to  leave  it,  cannot  recover  for  the  in- 
juries.^ .\s  a  general  rule,  however,  the  length  of 
time  which  should  be  allowed  depends  on  the  number 
of  passengers  who  are  to  leave  the  train,  their  agility, 
their  incumbrances,  and  all  the  circumstances  bear- 
ing on  the  particular  occurrence,  as  shown  by  the  evi- 
dence. A  fleshy  woman  has  a  right  to  ride  on  a  train, 
and  to  have  a  valise  and  parcels,  and  she  is  entitled  to 
more  time  for  alighting  than  might  be  required  for  a 
foot  racer  or  a  greyhound.* 

After  holding  a  train  long  enough  to  disembark  and 
receive  passengers  exercising  ordinary  diligence,  a 
conductor  is  not  bound  to  ascertain  whether  all  pas- 

8  Louisville,  X.  A.  &  C.  Ry.  Co.  v.  Costello,  9  Ind.  App.  462,  36  N. 
E.  299.  A  stop  of  four  minutes  is  sutticieut  for  a  passenger  to  leave 
the  car,  and  get  out  of  the  way  of  the  train.  Louisville  &  N.  R. 
Co.  V.  Ricketts,  93  Ky.  116,  19  S.  W.  182.  Code  Ala.  §  1157,  and 
Pub.  Gen.  Laws  Md.  art.  23,  §  179,  require  trains  to  stop  at  least 
one  half  minute  at  stations. 

*  I'ierce  v.  Gray,  63  111.  App.  158.  Where  a  railroad  company 
takes  upon  its  train  a  passenger  incumbered  with  hand  baggage 
and  parcels,  it  must  have  due  regard  to  his  condition  in  this  re- 
spect when  the  time  comes  for  him  to  leave  the  train.  Killian  v. 
Banking  Co.,  97  Ga.  727,  25  S.  E.  384. 
(104) 


Ch.   4)  DUTY    AS    TO    KKCKIVINt;    AND    DISCHARGING.  §    66 

sengei'S  desiring:  to  embark  are  safely  aboard  the 
train,  or  whether  those  desirin«>'  to  aliiilit  are  safely  on 
the  ground,  before  starting  the  train/  A  railroad 
company  performs  its  duty  when  it  stops  its  train  a 
sufficient  length  of  time  to  give  passengers,  using  or- 
dinary diligence,  a  reasonable  tiin-^  to  alight.  When 
the  train  is  stopped  for  such  a  length  of  time,  the  train 
hands  have  a  right  to  presume  that  all  passengers  de- 
siring to  do  so  have  left  the  cars;  and  it  is  no  part  of 
their  duties  to  make  personal  inspection  of,  or  inter- 
rogate, the  remaining  passengers,  to  see  whether  they 
intend  leaving  the  cars.^  But,  though  a  train  has 
stopped  at  a  station  a  reasonable  length  of  time  to  en- 
able passengers  to  alight,  yet  a  conductor  is  guilty  of 
negligence,  if,  having  reason  to  believe  that  a  passen- 
ger is  in  the  act  of  alighting,  he  starts  his  train,  with- 
out examination  or  inquiry,  when  he  might  do  so  by 
simply  looking  in  the  passenger's  direction.'^  Nor  is 
there  any  obligation  upon  a  railroad  company  to  keep 
its  train  waiting  until  passengers  can  leave  the  sta- 
tion platform.  It  is  sufficient  if  reasonable  time  is 
given  them  in  which  to  safely  get  off  the  train,  and  out 
of  the  way  of  the  cars.* 

B  Browne  v.  Railroad  Co..  108  N.  C.  34,  12  S.  E.  !).".S;  Raben  v. 
Railway  Co.,  73  Iowa.  57J>,  35  N.  W.  645. 

';  Hurt  V.  Railway  Co.,  1)4  Mo.  255,  7  S.  AV.  1;  Clot  wort  liy  v.  Rail- 
road Co.,  80  Mo.  220. 

7  Straus  v.  Railroad  Co.,  86  Mo.  421.  75  Mo.  185.  It  is  tho  duty 
of  a  railroad  company  to  afford  a  siilticiont  time  to  pasyonycrs  1o 
ali;,dit  in  safety  by  the  exen-ise  of  reasonable  diliKonce  and  care  on 
their  part,  and  it  is  negligence  on  the  part  of  such   company    to 


s  Louisville  &  N.  R.  Co.  v.  Ricketts  (Ky.)  37  S.  AV.  952. 

(16.-,) 


§    67  CARRIERS   OF   PASSENGERS.  (Ch.   4 

§  67.     SAME— SIGNALS  FOR  STARTING. 

On  tlie  question  whether  or  not  a  railroad  company 
is  bound  to  sij-nal  its  passengers  that  the  train  is 
about  to  start,  the  authorities  are  in  conflict.  The 
weight  of  authority,  however,  is  that  no  such  duty 
rests  on  the  company  as  to  passengers  about  to  alight. 
In  the  absence  of  custom,  a  railroad  company  is  not 
bound  to  signal  its  passengers  that  the  train  is  about 
to  start,  after  having  stopped  it,  and  kept  it  standing 
at  the  station  a  sufficient  length  of  time  to  allow  them 
to  alight  by  the  exercise  of  ordinary  and  reasonable 
diligence  on  their  part.  If,  after  the  allowance  of 
such  time,  a  train  moves  off  without  giving  any  sig- 
nal, and  the  passenger  is  then  in  the  act  of  alighting, 
none  of  the  employes  knowing  of  his  delay  or  of  his 
exposed  position,  and  he  is  injured  in  consequence  of 
the  movement  of  the  train,  the  company  is  not  liable 
for  the  consequences.^  But  in  an  early  Wisconsin 
case  it  was  held  that,  even  if  a  passenger  has  had  a 
reasonable  time  to  alight,  the  company  is  guilty  of 
negligence  in  starting  the  train  without  notice,  w^hile 
he  is  in  the  act  of  alighting.^ 

start  a  train  when  those  operating  it  know,  or  by  due  diligence 
niiglit  know,  tliat  a  passenger  is  in  the  act  of  aligliting.  Luse  v. 
Railway  Co.  (Kan.  Sup.)  4G  I'ac.  708. 

§  67.     1  Atlanta  &;  W.  T.  R.  Co.  v.  Diekerson,  89  Ga.  4.~>5.  15  S.  E. 
534;  New  York,  C.  &  St.  L.  Ry.  Co.  v.  Woods,  9  Ohio  Cir.  Ct.  R.  322. 


^  Imhoff  V.  Railroad  Co.  (1868)  22  Wis.  682.  In  Keating  v.  Rail- 
road Co.,  49  N.  Y.  673,  aftirniing  3  Lans.  (N.  Y.)  469,  it  Avas  held  that 
to  suddenly  put  a  train  in  motion  while  passengers  are  getting  on 
and  off,  without  giving  any  signal,  is  an  act  of  negligence. 

(ir,(;) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    67 

As  to  passengers  desiring  to  board  the  train,  it 
seems  that  notice  is  required.  Thus  where  an  emi- 
grant train  stops  at  a  station  over  night,  a  passenger 
has  the  right  to  get  out  of  the  car  the  next  morning  to 
take  the  fresh  air,  provided  he  keeps  within  a  reason- 
able distance  of  the  train;  and  it  is  negligence  to  start 
the  train  under  these  circumstances  without  giving 
some  reasonable  notice  or  warning  to  enable  passen- 
gers to  take  their  seats  before  it  starts.^  So  it  has  been 
held  in  Georgia  that  the  railroad  company  must  use 
ordinary  diligence  to  notify  tardy  passengers  that  the 
train  is  about  to  start,*  In  Texas  it  has  been  held 
that,  where  a  train  has  stopped  a  reasonable  length 
of  time  at  a  station,  the  failure  to  give  a  signal,  by 
whistle  or  otherwise,  of  the  intention  to  start,  is  not 
negligence  per  se,  but  the  question  is  one  of  fact  for 

statutes  reqiiiring  signals  at  stations  and  crossings  do  not  apply  in 
favor  of  passengers  on  the  train,  and  the  failure  to  give  such  a 
signal  as  the  train  is  about  to  leave  the  station  is  not  negligence 
in  respect  to  a  passenger  on  the  car.  Malcom  v.  Railroad  Co.,  100 
N.  C.  63,  11  S.  E.  187. 

3  Andrist  v.  Kailroad  Go.,  30  Fed.  345. 

4  Central  R.  &  B.  Co.  v.  Perry,  58  Ga.  4G1.  It  is  the  duty  of  a  rail- 
road company,  through  its  agents,  to  give  reasonable  signals  of  the 
depai'ture  of  its  trains  from  its  stations  and  depots,— such  signals 
as  would  ordinarily  attract  the  attention  of  passengers  and  those 
Interested  in  the  movements  of  the  cars  of  the  railroad  company. 
Perry  v.  Railroad  Co.,  6G  Ga.  740.  If  tlio  train  stop  at  a  wood  and 
water  station,  and  start  again  in  an  unusually  short  time,  or  witli 
unusual  speed,  or  without  blowing  the  signal  whistle  at  all,  or  suf- 
ficiently long  before  starting  to  put  persons  on  their  guard,  and  an 
injury  happens  at  the  time  to  a  passenger,  any  one  of  those  facts 
will  be  sufficient  evidence  of  negligence  and  mismanagement  to 
charge  the  company  with  liability  for  the  injuries.  Mitchell  v. 
Railroad  Co.,  30  Ga.  22. 

(107) 


§    08  CARRIERS   OF   PASSENGERS.  (Ch.   4 

tile  jury/  In  New  York  it  has  been  held  that  an  ele- 
vated railroad  company,  professing  to  provide  rapid 
transit,  and  making  short  stops  at  its  stations,  is  un- 
der the  duty  of  giving  to  intending  passengers,  for 
their  safety,  clear  and  intelligible  signals,  indicating 
when  it  had  ceased  to  be  safe  or  prudent  to  board  the 
train.^ 

§  68.     SAME— SUDDEN  MOVEMENT  OF  TRAIN  AFTER 
INVITATION  TO  GET  ON  OR  OFF. 

Where  a  passenger,  thinking  that  the  train  has 
made  its  final  stop  at  a  station,  is  injured  by  its  sud- 
den movement  while  getting  on  or  off,  the  carrier's 
liability  generally  depends  on  the  question  whether 
there  has  been  an  implied  invitation  to  get  on  or  off, 
and  on  this  question  the  principles  heretofore  laid 
down  in  reference  to  the  carrier's  duty  to  furnish  a 
safe  landing  place  are  likewise  controlling.  If  a 
ti:iin,  on  being  brought  up  to  a  station,  comes  to  a 
stop  in  such  a  manner  as  to  induce  the  belief  on  the 
part  of  a  passenger  in  waiting  on  the  platform  that  it 
has  stopped  for  the  reception  of  passengers,  it  is  neg- 

5  Gulf,  C.  &  8.  F.  Ry.  Co.  v.  W^illiams,  70  Tex.  159,  8  S.  W.  78; 
Galveston,  H.  &  H.  K.  Co.  v.  Cooper,  70  Tex.  67,  8  S.  W.  G8. 

6  McQuade  v.  Kaihvay  Co.,  53  N.  Y.  Super.  Ct.  91.  The  fact  that 
the  conductor  of  a  stationary  elevated  car  has.  his  hand  raised  on 
the  bell  rope,  in  vie^v  of  a  pa.sseuger  about  to  get  on  board,  is  not 
au  intelligible  signal  that  it  is  too  late  for  him  to  get  on  board,  or 
that  the  conductor  would  not  wait  until  the  few  seconds  had  elapsed 
<luring  which  the  passenger's  entry  on  the  platform  could  have 
been  safely  completed,  or  that  the  conductor,  regardless  of  plain- 
tiff's effort  to  get  on  board,  would  endeavor  to  shut  the  gates  against 
Lim.    Id. 

(IGS) 


Ch.   4)  D^TY    AS    TO    UKCEIVING    AND    DISCHARGING.  §   68 

lioence  on  the  part  of  the  company  to  start  the  train 
when  the  passenger,  acting  on  this  belief,  is  going  on 
board;   and  this  is  so  .N'ithout  regard  to  the  question 
whether  the  starting  was  one  of  necessity,  or  .N'hether 
the  stop  was  an  actnal  or  only  an  apparent  one/      The 
conductor  of  a  railway  train  has  control  of  its  move- 
ments   and  represents  the  corporation,  and  persons 
boarding  a  car  with  his  consent,  before  the  tram 
moves,  have  a  right  to  rely  on  his  assurance  that  it  is 
safe  to  undertake  to  do  so.^ 

The  same  principles  apply  as  to  passengers  about  to 
alioht.  Where  the  name  of  a  station  has  been  an- 
nounced, and  the  train  has  come  to  a  stop,  it  is  the 
duty  of  the  company  not  to  start  or  move  forward  the 
train  in  an  improper  or  dangerous  manner  at  a  time 
when  passenoers  may  rightfully,  in  the  exercise  of  due 
care  and  caution,  arise  from  their  seats,  and  prepare 
to  leave  the  train.^      After  announcing  the  name  of  a 

§  G8      1  Cm-tis  V.  Rnilroad  Co.,  27  Wis.  158.     Where  a  train  comes 
to  a  full  stop,  and  the  conductor  cries    "AH  aboard."  and  a  pas- 
senger, who  then  proceeds  to  get  on  board,  is  injured  by  a  sudden 
jerk  of  the  train,  the  que.stion  of  defendant's  negligence-  is  for  the 
jury.     Cook  v.  Railroad  Co.,  65  Hun,  619.  19  X.  Y.  Supp.  648. 
2  Olson  V.  Railroad  Co.,  ^5  Minn.  5:!6.  -18  N.  W  .  44... 
s  Chicago  &  A.  R.  CO.  v.  Arnol,  144  111.  261,  273.  |«  N.  E.  J^^,    W.. 
46  111.  App.  157;    McXulta  v.  Ensch.  V.'A  111.  46.  24  X.  E    031^  Id 
31  111    App    100.     Where  a  locomotive  whistle  is  sounded,  and  the 
brakeman  then  calls  <n,t  the  name  of  a  station,  and  the  train  corn^s 
to  a  stop,  a  passenger  for  that  station,  unacquainted  with  the  snr^ 
roundings,  and  the  night  being  dark,  is  justitied  in  P---ed>n.    o 
get   off,   and  may  recover  for  injuries  sustained  in  being  tluo^^n 
trom  the  train  by  its  sudden  starting;    the  stop  ^^^l'^^^ 
and  the  station  not  reached.     IK.oks  v.  Railway  Co     ^3  ^^--/4- 
18  south.  925;    Southern  Kan.  Ry.  Co.  v.  I'avey.  48  Kan    4o-.  _9 

(109) 


§    68  CARRIERS   OF   PASSENGERS.  (Ch.   4 

Station,  if  the  train  is  run  so  slow  as  to  appear  to  a 
person  of  ordinary  intelligence  and  observation  to- 
liave  stopped,  ordinary  care  for  the  safety  of  passen- 
gers requires  the  train  to  be  so  run  and  managed  as 
not  to  endanger  their  lives;  and  a  sudden  jerk  or 
start,  without  any  warning,  when  the  passengers  are 
upon  their  feet,  is  sufficient  evidence  of  carelessness 
to  imjjose  liability  on  the  company.* 

Pac.  593.  The  violent  and  unusual  backward  jerk  of  a  car,  with 
out  notice  or  warning  to  passengers,  after  the  train  had  stopped  at 
the  station,  and  the  passengers  were  getting  ready  to  leave  the  car 
in  the  usual  manner,  is  sufficient  evidence  of  negligence  to  take  the 
case  to  the  jury.  Emery  v.  Railroad  Co.  (N.  H.)  36  Atl.  367.  Run- 
ning a  train  past  a  station  platform,  and  stopping  it  at  a  place- 
where  there  are  no  lights,  inviting  passengers  to  use  haste  in  get- 
ting off,  and  the  jerking  of  the  cars  as  passengers  are  getting  off. 
warrant  a  finding  of  negligence.  Zimmerman  v.  Railroad  Co.,  14 
App.  Div.  562,  43  N.  Y.  Supp.  883. 

4  Bartholomew  v.  Railroad  Co.,  102  X.  Y.  716.  7  N.  E.  623.  It  is 
a  question  for  the  jury  whether  a  railroad  company  is  liable  for 
injuries  to  a  passenger  caused  by  the  sudden  jerking  of  the  car  in 
a  mixed  train,  while  he  was  standing  on  the  platform,  whither  he 
has  gone  after  the  conductor  has  called  the  name  of  the  station. 
Newton  v.  Railroad  Co.,  30  N.  Y.  Supp.  488.  80  Hun,  491.  This 
decision  is  doubtful,  since  a  passenger  on  a  mixed  train,  who  goes 
on  the  platform  while  the  train  is  still  in  motion,  assumes  the  risk 
incident  to  the  ordinary  movements  of  the  train.  Where  a  train 
has  almost  come  to  a  full  stop  at  a  passenger's  station,  and  is  mov- 
ing slowly,  it  is  negligence  for  the  engineer  to  suddenly  and  vio- 
lently increase  its  speed,  thereby  throwing  to  the  ground  a  pas- 
senger in  the  act  of  alighting.  Nance  v.  Railroad  Co.,  94  N.  C. 
619.  On  the  arrival  of  a  train  at  a  station,  a  porter,  before  the 
stopping  of  the  train,  unlocked  the  door  of  plaintiff's  carriage, 
threw  it  open,  and  said,  "All  out  for  H."  Plaintiff,  supposing  the 
train  to  have  come  to  a  stand,  begau  to  get  out,  and  had  placed 
one  foot  on  the  first  step  for  that  purpose,  when  the  brake  which 
had  been  applied  to  stop  the  train  was  suddenlj-  taken  off,  causing 
(170) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    69 

§  69.     SAME— DIRECTION  TO  LEAVE  MOVING  TRAIN. 

"The  rule  is  well  established  that  it  is  culpable  neg- 
ligence on  the  part  of  a  railroad  corporation  for  its 
officers  to  induce  a  passenger  to  leave  the  train  while 
in  motion,  and  a  gross  disregard  of  the  duty  it  owes 
him  not  to  stop  the  train  entirely,  and  give  the  pas- 
senger ample  time  and  opportunity  to  alight."  ^  Simi- 
lar rulings  have  been  made  in  other  states.-'  The  St. 
Louis  court  of  appeals  has,  however,  held  that  an  or- 
der or  direction  froin  a  trainman  to  a  passenger  to 
alight  from  a  moving  train  does  not  necessarily  con- 
stitute negligence.  Whether  it  does  or  not  will  de- 
pend on  the  attending  circumstances,  and  may  be  a 
question  for  the  jury.^ 

an  increase  of  speed,  and  throwing  her  on  the  platform.  Held 
negligence  on  the  part  of  the  company.  London  &  N.  W.  Ry.  Co. 
V.  Hellawell,  26  Law  T.  (N.  S.)  557. 

§  G9.  1  Bucher  v.  Railroad  Co.,  98  N.  Y.  12S,  131,  citing  Filer  v. 
Railroad  Co.,  49  N.  Y.  51. 

2  Jones  V.  Railway  Co.,  42  Minn.  183,  43  N.  W.  1114;  Atchison,  T. 
&  S.  F.  R.  Co.  V.  Hughes,  55  Kan.  491,  40  Pac.  919;  Georgia,  R. 
&  B.  Co.  V.  McCurdy,  45  Ga.  288;    Parker  v.  White,  27  N.  B.  442. 

3  Wilburn  v.  Railway  Co.,  48  Mo.  App.  224,  30  Mo.  App.  203. 
The  jury  may  find  a  railroad  company  guilty  of  negligence  in  not 
stopping  a  train  at  a  passenger's  destination,  but  merely  slowing 
the  speed  of  the  train.  Edgar  v.  Railway  Co.,  11  Ont.  App.  452, 
affirming  4  Ont.  201.  As  to  contributory  negligence  of  passenger 
in  leaving  moving  train,  see  post,  §§  149-155. 

(171) 


§    70  CARRIERS   OF  PASSENGERS.  C<^h.    4 


§  70.     SAME  — SPECIFIC    RULES    AS    TO    RECEIVING 
AND  DISCHARGING  PASSENGERS. 

The  rule  requiring  a  railroad  company  to  give  a  pas- 
senger a  reasonable  time  to  board  the  train  does  not 
apply  where  a  passenger  by  mistake  attempts  to  board 
a  wrong  train  20  or  30  minutes  before  the  advertised 
time  for  the  departure  of  his  train ;  and  hence  he  can- 
not recover  for  injuries  by  the  sudden  starting  of  the 
train  while  attempting  to  get  on  board. ^  But  a 
through  passenger  train  arriving  at  a  way  station  is 
ordinarily  waiting  for  passengers  so  long  as  it  remains 
there,  and  a  person  intending  to  take  passage  on  such 
a  train  may  presume  that  it  is  so  waiting.^  So  where 
a  passenger  presents  himself  for  passage,  and  at- 
tempts to  get  on  the  train  before  a  signal  to  start  is 
given,  the  company  must  give  him  a  reasonable  tijjie 
to  get  on  board;  but  to  cast  on  the  company  this  duty 
the  passenger  must  present  himself  in  due  time  as 
such,  and  signify  his  purpose  to  take  the  train."     The 

§  70.    1  Flint  &  P:  M.  Ry.  Co.  v.  Stark,  o8  Mich.  714. 

2  Chicago  ,St  E.  I.  R.  Co.  v.  Chancellor,  GO  111.  App.  525.  A  pas- 
senger entered  a  detached  passenger  car  standing  on  a  side  track 
before  the  brakeman  in  charge  had  arrived,  and  some  time  before 
thi'  regular  departure  of  the  train.  An  eiglit  year  old  boy  un- 
fastened the  brakes,  and  the  ear,  of  its  own  momentum,  ran  down 
grade  at  the  rate  of  10  miles  per  hour,  and  plaintiff  was  injured. 
Held,  that  it  was  a  question  of  fact  for  the  jury  whether  or  not 
the  railroad  company  was  guilty  of  negligence  in  not  locking  the 
car  door,  and  in  not  securing  the  brakes  so  as  to  prevent  an  eight 
year  old  boy  from  opening  them.  Western  Maryland  K.  Co.  v. 
Herold,  74  Md.  510,  22  Atl.  323. 

3  Ilickenbottom  v.  Railroad  Co.,  122  N.  Y.  91,  25  N.  E.  279.  A 
passenger  on  a  through  train  for  a  station  at  which  it  was  not 

(172) 


Ch.   4)  DUTY    AS    TO    RECKIVING    AND    DISCHARGING.  §    70 

sale  of  a  ticket  before  the  arrival  of  a  train,  or  when 
it  is  at  the  station,  does  not  give  the  purchaser  a  spe- 
cific right  to  take  that  particular  train,  nor  is  the  com- 
pany bound  to  know  that  she  is  coming,  and  hold  the 
Train  until  her  arrival.  The  company  is  bound  to  stop 
the  train  only  a  reasonable  length  of  time  to  get  on 
and  off;  and,  if  the  passenger  comes  after  the  signal 
to  start  is  given,  it  is  not  negligence,  as  against  her, 
that  the  train  starts  in  obedience  to  it.* 

An  interesting  question  sometimes  arises  where  a 
passenger  is  informed  by  the  conductor  that  the  train 
will  stop  a  certain  length  of  time  at  a  station,  and  it 
starts  after  stopping  a  reasonable  length  of  time,  but 
before  the  expiration  of  the  time  announced  by  the 

scheduled  to  stop  got  off  at  the  station  beyond,  and  undertook  to 
board  a  local  train  standing  on  the  side  track,  for  the  purpose  of 
getting  back  to  his  destination,  and  was  injured  by  the  sudden 
starting  of  the  train.  Held  that,  since  the  local  train  had  already- 
made  its  stop,  and  was  standing  on  a  side  track  away  from  the 
station,  and  none  of  its  employes  knew  of  plaintiffs  attempt  to  get 
on,  the  company  was  not  chargeable  with  negligence.  Philips  v. 
Railroad  Co.,  62  Hun,  233,  16  N.  Y.  Supp.  909;  Id.,  139  N.  Y.  650, 
35  N.  E.  207. 

4  Paulitsch  V.  Kailioad  Co.,  102  N.  Y.  281,  6  N.  E.  577,  rovorsiug 
50  N.  Y.  Super.  Ct.  241.  Where  a  freight  train  stops  at  a  place 
not  a  station,  and  not  for  tlie  purpose  of  receiving  passengers,  and 
the  conductor  notifies  people  there  assembled  not  to  board  the  train 
there,  but  at  a  designated  place  near  by,  the  company  is  not  re- 
sponsible to  one  who  was  injured  by  the  starting  of  the  train  as 
he  was  attempting  to  board  it,  though  he  did  not  hear  the  warning, 
where  neither  the  conductor  nor  any  other  person  on  the  train  was 
aware  of  his  intention  to  board  it.  Under  these  circumstances,  it 
could  not  have  been  the  duty  of  the  company  to  keep  the  tiain 
standing  at  that  place,  which  was  not  a  usual  place  for  passengers 
to  get  on.  so  as  to  afford  plaintiff  an  opportunity  to  board  the  train 
there.     Curry  v.  Railroad  Co.,  92  Ga.  293,  18  S.  E.  422. 


§    70  CARRIERS   OF  PASSENGERS.  (Ch.   4 

conductor.  Where  a  passenger  about  to  take  a  train 
at  a  station  is  informed  by  the  conductor  that  the  train 
will  stop  10  minutes,  the  passenger's  failure  to  imme- 
diately board  the  train  will  not  prevent  a  recovery  for 
injuries  sustained  by  the  sudden  starting  of  the  train 
while  he  was  boarding  it  before  the  10  minutes  had 
expired.'  But  a  statement  by  a  conductor  to  a  pas- 
senger that  the  train  will  stop  5  minutes  at  an  inter- 
mediate station  does  not  cast  on  the  company  the  duty 
of  stopping  the  train  there  for  that  length  of  time. 
The  contract  of  a  railroad  company  with  a  passenger 
is  to  carry  him  to  his  point  of  destination.  He  is  not 
expected  to  leave  the  cars  at  intermediate  stations, 
and  the  carrier  does  not  engage  to  afford  him  an  op- 
portunity to  do  so,  except  at  tlie  usual  stopping  place 
for  refreshments.* 

Is  the  railroad  company  bound  to  give  the  passen- 
ger a  reasonable  opportunity,  not  only  to  get  on  board 
the  car,  but  also  to  be  seated,  before  starting  the 
train?  On  this  question  the  supreme  court  of  Mis- 
souri has  held  that  a  railroad  company  need  not  wait 
for  a  passenger  to  reach  his  seat  before  starting  the 
train,  unless  there  is  some  special  reason  therefor,  as 

»  Texas  P.  Ry.  Co.  v.  Davidson,  68  Tex.  370,  4  S.  W.  636. 

c  Missouri  Pac.  Ry.  Co.  v.  Foreman,  73  Tex.  311,  11  S.  W.  326. 
But  the  court  of  civil  appeals  has  held  that  where  a  passenger 
leaves  a  train  at  an  intermediate  station,  on  the  conductor's  assur- 
ance that  it  will  stop  for  five  minutes,  and  the  conductor,  with 
knowledge  that  plaintiff  has  left  the  train,  starts  it  before  the  ex- 
piration of  the  five  minutes,  and  before  plaintiff  is  sufficiently  ne'ar 
the  track  to  board  it  before  it  Is  put  in  motion,  the  jury  may  find 
the  company  guilty  of  negligence.  Foreman  v.  Railway  Co.,  4  Tex. 
Civ.  App.  54,  23  S.  W.  422. 

(174) 


Ch.  4)  DUTY    AS    TO    BECKIVING    AND    DISCHARGING.  §    70 

ill  the  case  of  a  weak  or  lame  person,  aiid  then  the  car- 
rier must  have  notice  of  the  fact  before  creating  the 
exception.^  The  Texas  courts,  however,  hold  that  a 
railway  train  should  stop  at  its  station  a  reasonable 
length  of  time  to  allow  all  passengers  to  enter  the 
cars,  and  a  reasonable  length  of  time  thereafter  for 
them  to  be  seated;  and,  if  the  train  starts  before  the 
passenger  has  time  to  get  a  seat,  the  company  will  be 
liable  for  the  injuries  sustained  by  reason  thereof.* 

Where  a  passenger  is  directed  at  a  station,  by  train 
hands,  to  pass  through  cars,  either  to  reach  the  sta- 
tion platform  in  alighting,  or  to  reach  the  proper  car 
in  getting  on  board,  a  failure  to  stop  the  cars  long 
enough  to  enable  the  passenger  to  obey  the  direction, 
in  the  exercise  of  ordinary  care  and  diligence,  is  negli- 
gence, which  will  render  the  company  liable  for  in- 
juries sustained  in  being  jerked  from  the  car  platform 
by  the  sudden  starting  of  the  train.^ 

One  who  becomes  a  passenger  on  a  railroad  car  with 
his  wife  and  little  ones  is  their  guardian  and  protect- 
or. He  has  supervision  of  their  safety,  and  tJie  fam- 
ily group,  so  far  as  the  act  of  debarkation  from  the 

T  Yarnell  v.  Railroad  Co.,  113  Mo.  570,  21  S.  W.  1. 

8  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Powers,  4  Tex.  Civ.  App.  228,  23  S. 
W.  32.'5.  The  train  slioiild  .stop  a  reasouablo  leiisfh  of  time  to  al- 
low all  passengers  to  enter  the  cars,  and  if,  after  the  passeugers 
have  all  entered  the  cars,  a  reasonable  time  has  elapsed  to  permit 
them  to  secure  seats,  the  carrier  may  start;  and  in  sucn  a  caSe 
it  is  not  the  duty  of  the  conductor,  or  of  other  employes,  to  see  that 
all  passengers  are  in  their  seats  before  starting  the  train.  Inter- 
national &  G.  N.  R.  Co.  V.  Copeland,  GO  Tex.  325. 

0  Smith  V.  Railway  Co.,  108  Mo.  243,  18  S.  W.  071;  Turner  v. 
Railroad  Co.,  37  La.  Ann.  048. 

(175) 


§  70 


CARRIERS   OF   PASSENGERS.  (Ch.    4 


cars  is  concerned,  is  to  be  regarded,  to  all  intents  and 
purposes,  as  a  unit,— an  individual  integer;  and  tlie 
same  rule  which  accords  to  that  family  group  a  rea- 
sonable time  to  debark  must,  of  necessity,  include 
within  it  the  right  to  take  their  personal  belongings 
or  baggage  along  with  them  in  the  act  of  leaving  the 


car.^° 


The  fact  that  a  conductor  does  not  know  that  a  pas- 
senger intends  to  leave  at  a  station  where  the  train 
stops,  and  does  not  see  him  leaving  the  car,  cannot  fur- 
nish the  company  with  an  excuse  for  not  giving  him  a 
reasonable  time  to  get  off,  unless  he  was  so  situated  as 
to  conceal  himself  from  observation.''  But  starting  a 
train  from  a  station  without  giving  a  passenger  a  rea- 
sonable time  to  alight  will  not  render  the  company  lia- 
ble for  injuries  sustained  in  her  attempt  to  alight, 
where  the  premature  movement  of  the  train  was  caus- 
ed by  the  unauthorized  act  of  a  fellow  passenger  in 
pulling  the  bell  cord,  and  signaling-  the  engineer  to 
start,  and  she  knew  this,  and  recognized  the  fact  that 
it  would  put  the  train  in  motion.'* 

10  Hurt  V.  Railway  Co.,  94  Mo.  255,  7  S.  W.  1.  A  passenger 
alighting  with  a  basliet  and  a  package  laid  the  package  ou  the  car 
platform,  got  off  the  car  steps,  set  down  her  basket,  turned  around, 
and  got  on  the  car  step  to  reach  for  the  package,  when  the  train 
started,  and  she  was  injured.  Held,  that  the  company  owed  her 
the  duty  of  stopping  the  car  a  reasonable  length  of  time  to  en- 
able her  to  alight  with  her  packages;  and,  there  being  evidence  that 
she  used  all  reasonable  diligence  in  getting  off,  and  that  the  train 
did  not  stop  more  than  a  minute,  a  verdict  in  her  favor  would  not 
be  disturbed.     Simpson  v.  Railroad  Co.,  48  Hun,  113. 

11  McDonald  v.  Railroad  Co.,  116  N.  Y.  546,  22  X.  E.  1008. 

12  Mississippi  &  T.  R.  Co.  v.  Harrison,  66  Miss.  419,  6  South.  319. 

(176) 


Ch.  4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    72 

§  71.     SAME— FREIGHT  TRAINS. 

The  ooiidiutor  of  a  freight  train  caiTying  passengers 
should  notify  them  of  the  phice  to  get  off,  if  it  does  not 
stop  at  either  the  freight  or  the  passenger  station,  and 
then  afford  them  a  reasonable  opportunity  to  get  off.^ 
But  it  is  the  duty  of  a  passenger  to  ascertain  whether  a 
through  freight  train  on  which  he  embarks  will  stop 
at  his  destination;  and,  though  the  conductor  has  tak- 
en up  his  ticket,  the  conductor's  refusal  to  stop  the 
train  is  not  such  negligence  as  will  render  the  com- 
pany liable  for  injuries  sustained  by  the  passenger  in 
leaping  from  the  moving  train.-  A  railroad  company 
which  has  stopped  its  freight  train  at  a  water  tank 
a  lid  in  the  station  yards  for  about  30  minutes  is  not 
chargeable  with  negligence  b(Mjiuse  the  conductor 
gave  the  signal  to  leave  town,  so  as  to  render  it  liable 
for  injuries  to  a  passenger  who  attempted  to  climb  on 
a  stock  car  before  the  caboose  reached  the  station  plat- 
form.^ 

§  72.     SAME— STREET  CARS. 

Like  the  ordinary  steam  railroad,  a  street-railroad 
company  must  afford  passengers  a  reasonable  oppor- 
tunity to  get  on  and  off  its  cars.'     But  the  duty  of  a 

§  71.      3  llvhcv  V.  Bond,  'AS  Fed.  H-22. 

2  St.  Loui.s,  I.  M.  &  S.  Ry.  Co.  v.  Ro.sonbcir.v.  4r>  Ark.  2.-)6. 

•■'  Warren  v.  Kaihvay  Co.,  37  Kan.  408,  l.l  I'ac.  (lOl. 

§  72.  1  Poulin  V.  Railroad  Co.,  Gl  N.  Y.  (VJl,  allirniiug  34  N.  Y. 
Super.  Ct.  2'.H;:  Black  v.  Railroad  Co.,  108  N.  Y.  04O,  1.1  N.  E.  .-{SJ): 
Ferry  v.  Railroad  Co.,  118  N.  Y.  497,  23  N.  E.  822,  affirnilns;  .-)4  \. 
Y.  Super.  Ct.  325.     A  street-car  company  is  bound  to  afford  a  pas- 

V.    1  FET.CAR.PAS. 12  ('"'') 


§72  CARRIERS   OF  PASSENGERS.  (Ch.    4 

street-railroad  company  is  more  onerous  in  this  re- 
spect than  that  of  an  ordinary  railroad  company.  We 
have  seen  that  when  the  train  of  an  ordinary  railroad 
has  been  brought  to  a  standstill  at  the  proper  and 
usual  place  for  receiving  and  discharging  passengers, 
and  remains  stationary  for  a  sufficient  length  of  time 
for  this  purpose,  the  duty  of  the  trainmen  in  this  re- 
spect has  been  performed,  and  that  they  are  absolved 
from  the  further  duty  of  seeing  and  knowing  that  the 
passengers  are  on  or  off,  as  the  case  may  be.^  In  the 
case  of  street-car  companies,  however,  it  is  settled  by 
the  overwhelming  weight  of  authority  that  the  em- 
ploj^es  who  stop  the  car  to  permit  passengers  to  get  on 
or  off  are  bound  to  ascertain  and  know  whether  this 
has  been  accomplished  before  starting  the  car,  and  it 
is  not  sufficient  that  the  car  has  been  stopped  a  rea- 
sonable time.*     This  rule  applies  to  all  street-car  traf- 

senger  a  reasonable  opportunity  to  alight  with  safety,  and  the 
crowded  condition  of  a  car  is  no  excuse  for  lack  of  attention  to  a 
request  of  a  passenger  that  a  car  stop  for  him  to  get  off.  West 
Chicago  St.  R.  Co.  v.  Waniata,  68  111.  App.  481. 

2  Ante,  §  66;  Highland  Ave.  &  B.  R.  Co.  v.  Burt,  92  Ala.  291,  9 
South.  410;  Birmingham  U.  Ry.  Co.  v.  Smith,  90  Ala.  60,  8  South.  86. 

3  Highland  Ave.  &  B.  R.  Co.  v.  Burt,  92  Ala.  291,  9  South.  410; 
Birmingham  U.  lly.  Co.  v.  Smith,  90  Ala.  60,  8  South.  86;  Chicago 
City  R.  Co.  V.  Mnmford,  97  III.  SOO;  Anderson  v.  Citizens'  St.  Ry. 
Co.,  12  Ind.  App.  194,  38  N.  E.  1109;  Britton  v.  Railway  Co.,  9o 
Mich.  159,  51  N.  W.  276;  Finn  v.  Railway  Co.,  86  Mich.  74,  48  N. 
"S^'.  (596;  Pfeffer  v.  Railway  Co.,  24  N.  Y.  Supp.  490,  4  Misc.  Rep. 
465;  Wolfkiel  v.  Railroad  Co.,  38  N.  Y.  49;  Cohen  v.  Railroad  Co., 
9  C.  C.  A.  223,  60  Fed.  698;  Washington  &  G.  R.  Co.  v.  Harmon's^ 
Adm'r,  147  U.  S.  571,  13  Sup.  Ct.  557;  Id.,  18  D.  C.  255.  The  fact 
that,  while  plaintiff  was  attempting  to  board  one  of  defendant's 
street  cars,  a  signal  to  start  was  given  by  an  unauthorized  person, 
does  not  exempt  the  railroad  company  from  liability,  if  the  con- 

ins) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §   72 

fic,  whatever  the  motive  power  employed.*  When- 
ever there  is  no  regular  stopping  place  or  station  for 
receiving  or  discharging  passengers,  and  conductors 
are  not  informed  in  advance  where  passengers  desire 
to  alight,  and  cannot  know  how  many  are  expected  to 
alight,  when  the  motion  or  signal  to  stop  is  given,  the 
company's  duty  is  not  performed  by  merely  stopping 
the  car  a  reasonable  length  of  time,  but  the  conductor 
must  inform  himself,  by  looking  and  seeing,  how  many 
passengers  desire  and  intend  to  alight,  and,  in  any 
event,  to  see  and  know  that  no  passenger  is  in  the  act 
of  alighting,  or  in  a  position  which  would  be  rendered 
perilous  by  putting  the  car  in  motion.  The  reason- 
ableness of  this  rule  is  apparent  when  we  consider  that 
the  structure  of  street  cars  is  such  as  always  to  make 
it  possible,  by  proper  precaution,  to  see  in  a  moment 
the  position  of  the  passengers,  and  whether  any  one 
would  be  endangered  by  a  sudden  start.^ 

ductor  or  agent  of  the  railway  company  in  charge,  by  the  exercise 
of  due  care  and  diligence,  could  have  prevented  the  moving  of  the 
car,  and  thereby  avoided  the  injury.  North  Chicago  St.  II.  Co.  v. 
Cook,  145  Til.  551,  33  N.  E.  95S;    Id.,  43  III.  App.  034. 

4  See  cases  cited  supra.  In  Highland  Ave.  &  B.  R.  Co.  v.  Burt, 
92  Ala.  291,  9  South.  410,  the  rule  was  applied,  though  the  motive 
power  Avas  a  dummy  steam  engine.  Where  a  public  vehicle  stops 
at  the  corner  of  public  streets  to  permit  passengers  to  alight,  it  is 
the  duty  of  the  driver,  before  starting  the  vehicle  again,  to  look 
around,  and  see  whether  any  one  is  alighting,  though  he  has  stop- 
ped for  four   minutes.     Geirk  v.   Connolly,   13   Vict.   Law    R.  446. 

5  Cawfield  v.  Railroad  Co.,  Ill  N.  C.  -597,  16  S.  E.  703.  Where 
a  street  car  has  stopped  to  take  on  passengers,  it  is  the  duty  of 
the  conductor,  before  giving  the  signal  to  start,  to  look  around,  and 
see  that  all  persons  desiring  to  take  passage  at  tliat  place  are 
safely  on  board;   and  failure  in  the  performance  of  this  duty  can- 

(17!)) 


§    72  CARRIERS   OP  PASSENGERS.  (Ch.   4 

Numerous  cases  hold  that  it  is  negligence  to  start  a 
street  car  with  a  sudden  jerk,  or  to  suddenly  increase 
the  speed  of  a  slowly-moving  car,  while  the  passenger 
is  in  the  act  of  getting  on  board,"  or  in  the  act  of  alight- 
ing,' or,  at  least,  that  the  question  is  for  the  jury.* 

not  be  excused  by  the  fact  that  the  conductor  did  not  actually  see 
a  person  in  the  act  of  fretting  on  board.  Dudley  v.  Railway  Co.. 
73  Fed.  128.  Where  the  signal  of  an  intending  passenger  is  ob- 
served by  the  conductor  and  niotoneer,  and  the  train  is  slowed 
down,  and  the  passenger  begins  to  board,  it  is  incumbent  on  the 
employes  of  the  compan.\-  to  know  that  he  is  on  the  train  before 
they  start  it.  Omaha  St.  Ry.  Co.  v.  Martin.  48  Neb.  65,  60  N.  W. 
1007.  A  conductor  of  a  train  of  street  cars,  two  in  number,  stand- 
ing on  the  front  platform  of  a  rear  car,  is  guilty  of  negligence  in 
starting  the  train  while  a  passenger  is  alighting  from  the  rear  plat- 
form of  the  front  car.  The  conductor  ought  to  have  seen  him,  in 
the  exercise  of  extraordinary  care.  Omaha  &  C.  B.  R.  &  B.  Co.  v. 
Levinston  (Neb.)  67  N.  W.  887.  The  rule,  however,  applies  only 
to  persons  who  attempt  .to  get  on  the  car  while  it  is  standing  still, 
and  not  after  the  car  is  in  motion.  Meriwether  v.  Railway  Co.,  45 
:\r().  App.  528.  Thus  a  street-railroad  company  is  not  liable  for 
an  injury  to  a  child  nearly  seven  years  old  caused  by  his  sudden 
and  unanticipated  attempt  to  l)oard  a  slowly-moving  car,  which  at- 
tempt could  neither  be  foreseen  nor  guarded  against.  Hestonville 
r.  R.  Co.  v.  Connell,  88  Pa.  St.  520;  Pitcher  v.  Railway,  154  Pa. 
St.  560,  26  Atl.  559.  The  driver  of  a  street  car  is  bound  to  exercise 
only  ordinary  watchfulness  to  observe  persons  in  the  street  de- 
siring to  become  passengers:  and  if,  exercising  such  watchfulness, 
he  fails  to  notice  an  intending  passenger,  the  company  is  not  liable 
for  injui-ies  sustained  in  an  attempt  to  board  the  moving  cai*.  Lam- 
line  V.  Railroad  Co.,  14  Daly,  144. 

c  Spearman  v.  Railroad  Co.,  57  Cal.  432;  Conner  v.  Railway  Co.. 
105  Ind.  62.  4  N.  E.  441;  Sahlgaard  v.  Railway  Co.,  48  Minn.  232, 
51  N.  W.  ni:  Butler  v.  Railroad  Co.,  49  Hun,  610,  2  N.  Y.  Supp. 
72;  Schalscha  v.  Railroad  Co.  (Sup.)  43  N.  Y.  Supp.  251;  Thompson 
V.   Macklem,  2  U.   C.   Q.   B.  300.    To   suddenly   start  a  street  car 

'  See  note  7  on  following  page. 
8  See  note  8  on  following  page. 
(ISO) 


Cil.   4)  DUTY    AS    TO    RKCKIVJKG    AND    DISCHARGING.  §    7- 

A  street-ear  company  does  not  fill (141  its  entire  dnty 
by  stopping  its  ears  merely  long  enongh  to  permit  a 
passenger  to  get  on  the  platform.  The  conductor 
should  see  that  a  passenger  who  is  lawfully  entering 

wiiilo  a  passenger,  boarding  it,  is  still  on  the  steps,  and  then  to 
jerk  it.  as  though  slaokeniug  in  speed,  throwing  the  passenger,  who 
has  sprung  forward  1o  reach  a  place  of  safety,  against  a  seat,  is 
evidence  of  negligence,  sutticlent  to  take  Th(>  case  to  the  .jury.  Miller 
V.  Railway  Co.  (Minn.)  68  N.  AV.  8(12.  AVhether  a  car  was  pre- 
maturely started  is  a  question  for  the  jury,  whore  tlie  driver  di- 
rected plaintiff  to  enter  by  way  of  the  front  plalforni.  and.  before 
she  mounted  the  second  step,  the  car  was  started,  and  she  was 
thrown  against  the  handles  of  the  door,  whereby  she  was  injured. 
De  Rozas  v.  Railway  Co..  43  N.  Y.  Supp.  27,  13  App.  Div.  296. 

T  City  &  S.  Ry.  v.  Findley.  76  Ga.  811;  Coast  Line  R.  Co.  v.  Bos- 
ton. 83  (Ja.  387,  9  S.  E.  1108;  Wardle  v.  Railroad  Co.,  3.")  La.  Ann. 
202;  Howell  v.  Railroad  Co..  22  La.  Ann.  603;  Conway  v.  Railroad 
Co..  46  La.  Ann.  1429,  16  South.  362:  Boikens  v.  Railroad  Co.  (La.) 
19  South.  737;  Nichols  v.  Railroad  Co..  38  N.  Y.  131:  .Mulhado  v. 
Railroad  Co.,  30  N.  Y.  370;  Munroe  v.  Railroad  Co.,  50  N.  Y.  Super. 
Ct.  114;  Morrison  v.  Railroad  Co.,  130  N.  Y.  166,  29  N.  E.  105.  af- 
firming 8  N.  Y.  Supp.  436;  Murphy  v.  Railroad  Co..  43  N.  Y.  Supp. 
22;'.  19  Misc.  Rep.  IM.  It  i.s  negligence  on  the  ]iart  of  the  em- 
ployes on  a  street  car  to  permit  it  to  move  while  passengers  are 
in  the  act  of  alighting.  Martin  v.  Railroad  Co..  38  N.  Y.  Supp.  220, 
3  App.  Div.  448. 

8  West  End  &  A.  Ry.  Co.  v.  Mozely.  79  (la.  463,  4  S.  E.  324;  Buck 
V.  Power  Co.,  46  Mo.  App.  555;  Linch  v.  Traction  Co..  1.5.".  Pa.  St.  102. 
25  Atl.  621;  Crissey  v.  Railway  Co..  75  Pa.  St.  S3.  Whctlicr  or  not  the 
driver  of  a  street  car  is  negligent  in  st;irting  up  liis  team  wliile  a 
passenger  is  alighting  is  a  question  of  fact  for  tlic  jury,  and  not  of 
law  for  the  court.  Conner  v.  Railroad  Co.  (Ind.  Suit.)  45  N.  E. 
662.  The  fact  that  a  street  car  is  suddenly  started  as  a  pas- 
senger, in  the  exercise  of  ordinary  care,  is  atteminiiig  to  alight. 
after  liaving  signaled  the  conductor  hei-  desire  \o  do  so,  does  not. 
as  matter  of  law,  render  defendant  liable;  the  (piestion  of  negli- 
gence l)eing  for  the  jury.  Chicago  City  Ky.  <'o.  v.  DInsmore,  l(i2 
111.  658,  44   N.   E.  887,   reversing  62  111.   Ai»p.  473.      It   is  not   negli- 

(18i; 


§    72  CARRIERS   OP   PASSENGERS.  (Cll.    4 

tlie  cars  is  in  a  place  of  safety  before  giving  the  signal 
to  the  driver  to  proceed.®  The  company  should  allow 
passengers  a  reasonable  time  to  enter  and  take  a  seat^ 
if  there  be  one,  or  reasonable  time  to  seize  the  straps 
furnished  for  passengers  when  standing;  and  while  it 
may  start  its  car  before  the  passenger  has  had  time  to 
take  a  seat,  or  secure  his  hold  on  the  strap,  it  must  ex- 
ercise the  utmost  care  in  starting,  so  as  not  to  jar  or 
upset  him/° 

If  a  street  car  has  been  stopped  at  a  point  usual  for 
taking  on  passengers,  the  duty  devolving  upon  those 
in  charge  of  the  car,  of  giving  ample  opportunity  for 
safely  mounting,  is  not  limited  to  the  person  or  per- 

prence,  as  matter  of  law,  for  the  driver  of  a  street  ear  to  merely 
slacken  its  speed  for  one  to  set  on,  especiall.v  where  he,  without  in- 
dicating any  desire  that  it  be  stopped,  attempts  to  board  it  while  in 
motion.     Finkeldey  v.  Cable  Co.  (Cal.)  45  i  ac.  99G. 

9  Akersloot  v.  Railroad  Co.,  131  N.  Y.  599,  30  N.  E.  195:  Dillon  v. 
Railway  Co.,  49  Ilnn,  G08,  1  N.  Y.  Supp.  679. 

10  Dougherty  v.  Railway  Co.,  81  :Mo.  325;  s.  c.  9  Mo.  App.  478: 
Holmes  v.  Traction  Co.,  153  Pa.  St.  152,  25  All.  040;  West  Chicago  St. 
Ry.  Co.  V.  Craig,  57  111.  App.  412;  Losee  v.  Railroad  Co.,  63  Hun. 
404,  18  N.  Y.  Supp.  297;  Kinkade  v.  Railway  Co.,  29  N.  Y.  Supp. 
747,  9  Misc.  Rep.  273.  It  is  the  duty  of  the  conductor  of  a  street- 
railway  car  to  stop  it  when  hailed,  and  to  hold  it,  and  not  permit 
it  to  start  until  the  person  hailing  it  has  had  a  reasonable  time  to 
take  a  safe  position  inside;  and  a  failure  to  perform  this  duty  con- 
stitutes negligence.  Auacostia  &;  i*.  R.  R.  Co.  v.  Klein,  8  App.  D, 
C.  75.  The  fact  that  an  elevated  train  starts  with  a  .ierk,  while 
a  passenger,  who  luis  lingered  in  the  choice  of  a  seat,  is  in  the  act 
of  sitting  down,  throwing  her  to  the  floor,  does  not  show  negli- 
gence in  the  management  of  the  train.  In  the  nature  of  things,  a 
strong  traction  by  the  engine,  involving  necessarily  some  jerk,  is 
inevitable  in  starting  the  train.  De  Soucey  v.  Railway  Co.  (Com. 
PI.)  15  X.  Y.  Supp.  108.  See,  post,  §  81,  as  to  sudden  jerk  of  car  dur- 
ing transportation. 

(1S2) 


Ch.   4)  DUTY    AS    TO    RECKIVIXG    AND    DISCHARGING.  §    72 

SOUS  who  mav  have  siunaled  the  car.  It  is  their  dutv 
to  stop  a  sufficient  time  for  others  desiring  to  take  pas- 
sage to  do  so  safely/^  So  where  a  street  car  has 
stopped,  or  is  about  to  stop,  in  obedience  to  the  signal 
of  an  alighting  passenger,  another  i)assenger  who  de- 
sires to  alight  at  the  same  x)lace  is  not  bound,  as  mat- 
ter of  law,  to  give  notice  that  he  also  desires  to  alight. 
The  stopping  or  slowing  of  the  car,  in  response  to  the 
signal,  may  fairly  be  taken  as  notice  by  all  passengers 
that  all  who  desire  to  alight  may  take  advantage  of 
the  opportunity.^-  And  though  a  str,eet  car  stops  for 
a  purpose  other  than  discharging  passengers,  yet  it  is 
negligence  in  the  employes  to  start  it  suddenly  while  a 

11  Joliet  St.  Ry.  Co.  v.  Dnggan.  45  111.  App.  450.  The  tact  that 
a  passenger  rides  to  the  end  of  a  street-car  line  does  not  authorize 
a  legal  Inference  that  she  intends  to  ride  back:  and  if  the  driver 
stops  the  car  near  the  end  of  the  track,  on  the  return  trip,  at  a  place 
where  passengers  are  in  the  habit  of  getting  off.  such  passenger 
has  the  right  to  get  off,  without  making  any  request  or  obtaining 
any  permission;  and  if  the  driver  laiew  it.  or  by  the  exorcise  of  duo 
care  could  have  kno^Yn  it,  it  is  negligence  to  start  the  car  while 
the  passenger  is  in  the  act  of  alighting.  Chicago  W.  D.  Ky.  Co.  v. 
Mills,  105  111.  63.  On  a  former  appeal  in  tliis  case  it  was  held  that 
while  a  street  car  is  passing  from  the  ottice  of  the  company  to  the 
terminus  of  the  line,— a  distance  of  about  half  a  block.— the  company 
Is  not  required  to  anticipate  that  passengers  will  be  desirous  of 
getting  oft'  the  cars  at  any  and  every  stoppage  they  make  on  this 
short  circuit.  And  therefore,  unless  it  should  appear  that  the 
driver  stopped  the  car  for  tlie  purpose  of  letting  passengers  get  off. 
the  company  is  not  chargeable  with  negligence  because  of  his  start- 
ing the  car  forward  while  the  passenger  is  aligliting.  Chicago  W. 
D.  Ky.  Co.  V.  Mills,  91  111.  :59. 

i-J  Rathbone  v.  Railroad  Co.,  13  R.  I.  TOO;  Wheaton  v.  Railroad 
Co.,  30  Cal.  5U0. 

(183) 


K    7-  CARRIERS   OF   PASSENGERS.  (Cll.  4 

passeno-er  is  in  the  act  of  alighting,  provided  they 
knew  this  fact.^^ 

In  applying  the  rule  that  passengers  must  be  given 
a  reasonable  opportunity  to  get  safely  on  board,  re- 
gard must  be  had  to  the  circumstances  of  each  partic- 
ular case;  and  the  fact  that  the  movements  of  a  pas- 
senger are  somewhat  incumbered  by  packages  in  his 
hands  may  reasonably  require  more  delay  and  care  in 
starting  the  train,  in  order  to  insure  his  safety.^ 


14 


i.Jack.son  v.  Kaihvny  Co.,  118  Mo.  199,  223,  24  S.  W.  192.  In 
Pattor.-on  v.  Railway  Co.,  90  Iowa,  247,  57  N.  W.  880,  it  was  fur- 
ther held  that,  in  such  a  case,  it  is  negligence  to  start  the  car  if 
the  employes  could,  by  the  exercise  of  due  diligence,  have  known 
that  the  passenger  was  in  .the  act  of  alighting.  Where  a  .street 
car  has  been  slowed  down  to  let  a  passenger  get  ofE  near  a  street 
crossing,  and  the  driver  sees  him  on  the  step  preparing  to  get  off, 
it  is  negligence  for  the  driver  to  release  the  brake  and  start  the 
horses,  causing  a  jerk,  throwing  the  passenger  to  the  ground,  though 
the  car  is  between  the  cross  walks  of  an  intersecting  street,  and 
the  cars  are  prohibited  to  stop  there  by  ordinance.  The  driver  is 
bound  to  use  at  least  ordinary  care  in  starting  the  horses  forward. 
Medler  v.  Railway  Co.,  12  N.  Y.  Supp.  930.  Where  one  hails  a 
street  car  while  it  is  crossing  the  track  of  an  intersecting  road,  the 
conductor  and  driver  have  a  right  to  assume  that  he  desires  the 
car  stopped  to  enable  him  to  get  on,  and  that  he  does  not  intend  to 
get  on  while  it  is  in  motion,  before  the  intersecting  track  is  crossed. 
Even  if  they  believe  that  he  entertains  the  idea  of  getting  on  the 
car  while  it  is  in  motion,  and  they  sliould  doubt  his  ability  to  do 
so.  they  owe  him  no  such  duty  as  to  warn  liim  off.  He  is  the  best 
judge  of  the  risk  of  such  an  act.  and  the  responsibility  for  it  rests 
solely  on  him.     Holohan  v.  Railroad  Co.,  8  Mackey    (D.  C.)  31G. 

14  Steeg  v.  Railway  Co.,  50  Minn.  149,  52  N.  W.  393.  A  street-car 
driver  who  knows  that  a  passenger  is  about  to  alight,  and  has 
stooped  to  pick  up  a  bundle  which  he  has  deposited  on  the  platform, 
is  negligent  in  releasing  the  brake,  and,  under  the  rule  requiring  the 
utmost  diligence  and  care  towards  passengers,  the  company  is  li- 
able for  injuries  sustained  by  the  passenger  in  being  struck  in  the 
(184) 


Ch.   4)  DUTY    AS    TO    RECEIVING    AND    DISCHARGING.  §    72 

Where  the  only  person  in  oharoe  of  a  street  car  is 
driving  on  the  front  platform,  with  his  back  towards 
passengers,  and  a  lady,  without  remonstrance,  arises 
to  leave  the  car  by  the  rear  platform  while  the  car  is 
in  motion,  it  is  a  question  for  the  jury  whether  there  has 
been  a  violation  of  a  city  ordinance  which  requires  con- 
ductors to  prevent  ladies  or  children  from  leaving  cars 
while  in  motion/^  So,  posting  printed  notices  forbid- 
ding passengers  from  riding  on  the  front  platform,  or 
from  leaving  a  street  car  while  in  motion,  does  not  af- 
fect the  company's  responsibility  for  injuries  to  a  boy 
caused  by  the  driver's  failure  to  stop  the  car  to  enable 
him  to  alight.'^  But  the  fact  that  the  conductor  is 
inside  the  car  when  it  slows  up  at  a  street  crossing  to 
permit  a  passenger  to  get  on  board  is  no  evidence  of 
negligence  on  the  part  of  the  company.^ '  A  conductor 
is  not  absolutely  bound  to  remember  a  notice,  giveu 
him  by  a  passenger,  of  the  place  where  she  intends  to 
get  off;  nor  is  he  absolutely  bound,  not  only  to  stop 
the  car  at  such  a  place,  but  also  to  give  her  notice  that 
the  car  has  stopped  there,  in  order  that  she  may  get 

eye  by  the  brake  handle.  Schuler  v.  Railroad  Co.  (Coin.  PI.)  20 
N.  Y.  Supp.  683,  affirming  (City  Ct.)  17  N.  Y.  Supi*.  s:J4.  A  street 
car  stopped  to  let  pa.ssengers  off.  Plaintiff,  one  of  them,  gathered 
up  his  tools,  but  before  he  got  off,  and  while  he  wa.s  on  the  foot- 
board, the  car  started.  He  requested  the  conductor  to  stop,  and 
the  latter  rang  the  bell  as  a  signal  to  stop,  wheu  phiintiff,  by  a  Jolt 
or  jerk,  was  thrown  off.  Held,  that  the  (piestiou  of  the  company's 
negligence  was  for  the  jury.  Sniiih  v.  liiiiisit  Co.,  IGT  Pa.  St,  209,  31 
Atl.  r)-u. 

i"'  Fortune  v.  Railroad  Co.,  10  ^lo.  App.  2.".2. 

10  I5renuau  v.  Railroiid  Co.,  4ij  Conn.  2.S4. 

17  Picard  V.  Railroad  Co.,  147  Pa.  St.  Vjr>.  2;j  Atl.  oGG. 

(185) 


§    To  CARRIERS   OF  PASSENGERS.  (Ch,    4- 

off.  But  the  fact  of  notice  is  one  circumstance  to  be 
considered,  in  connection  witli  others,  on  the  question 
of  the  conductor's  negligence,  and  of  due  care  on  the 
part  of  the  passenger.'^  Where  a  passenger  signals 
the  motorman  to  stop  at  the  next  street  crossing,  and 
the  car  slows  up,  and  comes  almost  to  a  standstill  on 
the  crossing,  and  then  the  iiassenger  gives  another  sig- 
nal, the  company  is  not  liable  for  injuries  sustained  by 
reason  of  the  sudden  starting  of  the  car,  where  the  sec- 
ond signal  was  the  usual  signal  to  start,  and  the  motor- 
man  did  not  know,  and  could  not  have  known  by  the 
exercise  of  due  care  and  skill,  that  the  passenger  had 
not  alighted  when  he  started  the  car.^® 

§  73.  SAME— ELEVATORS. 

The  person  in  charge  of  an  elevator  must  give  a  pas- 
senger reasonable  opportunity  to  obtain  a  balance  on 
entering  it,  before  a  rapid  and  sudden  upward  move- 
ment is  begun,  having  a  tendency  to  disturb  the  equi- 
librium of  one  vet  in  motion.^ 

18  Robinson  v.  Railway  Co.,  157  Mass.  224,  32  N.  E.  1. 

19  Sirk  V.  Railway  Co.,  11  Ind.  App.  GSO,  39  N.  E.  421.  Laws  N. 
Y.  1881,  c.  399,  requires  all  elevated  trains  to  come  to  a  stop  be- 
fore passengers  shall  be  permitted  to  leave  tliem,  and  prohibits 
them  from  starting  until  every  passenger  desiring  to  depart  shall 
have  left  the  train,  and  until  every  passenger  desiring  to  get  on 
board  shall  have  done  so.  This  statute  affords  no  justification  for 
the  act  of  a  guard  who  closes  the  gate  while  a  passenger  has  one 
foot  on  the  car  platform,  and  who  gives  the  signal  for  starting 
while  the  passenger's  foot  is  pinned  fast  by  the  gate.  .  Lee  v.  Rail- 
way Co.,  53  N.  Y.  Super.  Ct.  260. 

§  73.     1  Mitchell  v.  Marker,  10  C.  C.  A.  30G,  G2  Fed.  139. 
(18G) 


Ch.    5)  DUTi'    Oi«    CAKt:    DURING    TRANSPORTATION.  §   74 

( 

CHAPTER  V. 

DUTY  OF  CARE  DURING  TRANSPORTATION. 

S  74.  Degree  of  Care. 

75.  Formation  of  Trains— Concussion  of  Oars. 

76.  Same— Position  of  Cars  in  Train. 

77.  Same— Street  Cars. 

78.  Rate  of  Speed. 

79.  Same— Freight  Trains. 

80.  Same — Street  Cars. 

81.  Sudden  Jerk  of  Cars. 

82.  Crowded  Cars  and  Platforms. 

83.  Same — Street  Cars. 
Si.  Same — Stagecoaches. 

85.  Permitting  Passenger  to  Ride  on  Platform  of  Street  Car. 

8(5.  Vestibuled  Trains  and  Sleeping  Cars. 

87.  Slamming  of  Car  Door. 

88.  Collisions— Between  Trains  Running  on  Same  Track. 

89.  Same — Between  Trains  at  Grade  Crossings. 

90.  Same— At  Street-Railway  Crossings. 

91.  Same— Between  Street  Car  and  Vehicle. 

92.  Other  Breaches  of  Carrier's  Duty  during  Transportation. 
9.3.  Statutoi-y  Provisions  against  Fires  and  Explosives  on  Trains. 
94.  Stagecoaches. 

§  74.     DEGREE  OF  CARE. 

The  rule  requiring  of  the  carrier  the  highest  de- 
gree of  care  applies  not  only  to  the  construc- 
tion of  vehicles,  roadbed,  and  machinery,  but 
also  to  the  control  and  management  of  the 
means  of  transportation  from  the  time  the  pas- 
senger is  received  as  such  until  he  is  discharged 
at  destination.' 

§  74.     1  Mitchell  v.  Marker,  10  C.  C.  A.  30(3,  G2  Fed.  130;    Id..  54 
Fed.  637. 

(187) 


§    75  CARRIERS   OF  PASSENGERS.  (Ch.    5 

The  foregoing  is  the  only  general  principle  that  can 
be  safely  enounced  as  applicable  to  the  rather  hetero- 
geneous class  of  cases,  involving  the  carrier's  duty  to 
provide  for  the  safety  of  the  passenger  during  trans- 
portation. The  mode  of  making  up  the  train,  the  rate 
of  speed,  the  jolting  and  jarring  of  cars,  the  crowded 
condition  of  coaches,  and  collisions  between  trains,  are 
the  principal  heads  under  which  the  carrier's  duty  dur- 
ing transportation  has  been  discussed  by  the  courts. 
These  subjects  will  be  treated  in  this  chapter,  along 
with  others  of  lesser  importance. 

§    75.    FORMATION    OF     TRAIN   —    CONCUSSION    OF 

CARS. 

If  a  railway  company  receives  a  passenger  in  one  of 
its  cars  before  the  train  is  completely  made  up,  the  law 
requires  the  company  to  make  up  the  train,  couple, 
manage,  and  control  its  cars  and  engines,  in  such  a 
<'areful,  skillful,  and  prudent  manner  as  to  carry  the 
passenger  with  reasonable  safety;  and  it  is  liable  for 
an  injury  to  the  passenger  resulting  from  its  neglect  of 
this  duty,  if  the  passenger  is  not  wanting  in  ordinary 
€are.^  A  railway  company,  in  coupling  a  freight  train 
to  a  passenger  car  having  passengers  already  on  board, 

«  75.  1  Hannibal  &  St.  J.  K.  Co.  v.  Martin,  111  111.  lMU.  11  111.  App. 
38(3.  A  passenger  tvIio  goes  on  a  train  ready  to  receive  passengers, 
and  who  is  thrown  across  one  of  the  seats  by  the  concussion  of  the 
engine  with  the  baggage  car,  just  as  he  gets  inside  the  door,  may 
recover  for  the  injuries  sustained,  where  the  blow  given  the  car 
was  much  more  severe  than  Avas  proper.  Richmond  &  D.  R.  Co. 
V.  Childress,  86  Ga.  8."),  12  S.  E.  301.  ^A'here  a  train  has  separated, 
leaving  the  rear  end  stationary,  the  question  whether  the  engineer 
(iS8) 


Ch.   O^i  DUTY    OF    CARE    DURING    TRANSPORTATION.  §   75 

is  bound  to  exercise  extraoidiuary  diligence;  that  is, 
such  diligence  as  very  prudent  persons  would  use  with 
a  like  train  under  like  circumstances."  Thus  to  back 
cars  against  a  caboose  with  such  force  as  to  throw  a 
passenger  in  the  caboose  from  his  seat  is  sufficient  to 
warrant  a  jury  in  finding  defendant  guilty  of  negli- 
gence, where  there  is  evidence  that  the  cars  could  eas- 
ily have  been  moved  back  in  such  a  way  as  not  to  in- 
jure persons  in  the  caboose.^  And  where  a  train  is 
stopped  at  a  station  to  enable  passengers  to  get  a  meal, 
it  is  negligence  in  the  employes  of  the  company  to 
briua  a  switch  engine  in  such  violent  contact  with  a 
passenger  car  as  to  injure  a  passenger  in  the  act  of 
leaving  the  car,  if  he  had  not  been  allowed  a  reason- 
able time  to  leave  after  the  train  had  stopped.* 

is  negligent  in  backing  the  front  section  against  tlie  rear,  without 
giving  any  signal  of  its  approach,  is  for  the  jury.  AVinter  v.  Rail- 
way Co.,  80  Iowa,  443,  45  N.  W.  737.  Failure  to  apply  brakes  to 
a  moving  train,  when  the  discharge  of  that  duty  will  avert  all 
danger  to  passengers  that  might  result  from  a  collision  oi  concus- 
Rion  of  cars,  is  negligence.  Tillett  v.  Railroad  Co.,  118  N.  C.  1031. 
24  S.  E.  111. 

2  Chattanooga.  R.  &  C.  R.  Co.  v.  Huggins,  89  Ga.  494,  15  S.  E. 
848. 

3  Quackenbush  v.  Railway  Co.,  73  Iowa,  458,  35  N.  W.  523;  Illinois 
Cent.  R.  Co.  v.  Axley,  47  111.  App.  307.  Where  a  train  is  so  crowd- 
ed that  passengers  are  compelled  to  ride  on  the  platform,  the  July 
is  wan-anted  in  finding  the  company  negligent  in  making  the  coup- 
ling with  an  unnecessarily  severe  jolt.  Choate  v.  Itailway  Co.,  (!7 
Mo.  App.  105. 

*  East  Line  &  R.  R.  Ry.  Co.  v,  Rusliiiig.  G9  Tex.  30U,  G  S.  W.  8:U. 

(189) 


§    76  CARRIERS   OF  PASSENGERS.  (Ch.    5 

§  76.     SAME— POSITION  OF  CARS  IN  TRAIN. 

Statutes  in  many  states  provide  that,  in  forming  a 
passenger  train,  no  baggage,  freight,  merchandise,  or 
lumber  car  shall  be  placed  in  the  rear  of  passenger 
cars/  These  statutes  doubtless  express  the  popular 
belief  that  it  is  safer  to  ride  in  the  rear  portion  of  a 
train  than  in  the  front.  Even  without  the  aid  of  such 
a  statute,  it  has  been  held  that  to  place  a  freight  car 
in  the  rear  of  a  passenger  coach  is  evidence  of  negli- 
gence; ^  and  to  place  broad  gauge  cars,  constructed  to 
run  on  a  track  four  feet  eight  inches  wide,  in  a  train  on 
a  narrow  gauge  road,  three  feet  wide,  is  negligence,  as 
matter  of  law,  which  will  render  the  company  liable 
for  a  derailment  caused  thereby.^ 

§  76.  1  Mansf.  Dig.  Ark.  §  5477;  Rev.  St.  Ind.  1894,  §  5191  (Rev. 
St.  Ind.  18S1,  §  3927);  1  How.  Ann.  St.  Mich.  §  3373;  Rev.  St.  Mo. 
1889,  §  2607;  Pen.  Code  Mont.  1895,  §  691;  Gen.  St.  Nev.  1885,  § 
881;  Revision  N.  J.  p.  933,  §  116;  Code  N.  C.  1883,  §  1971;  Pub.  St. 
R.  I.  1882,  p.  406,  c.  158,  §  10;  1  Rev.  St.  S.  C.  1893,  §  1680;  Sayles' 
Civ.  St.  Tex.  art.  4233;  2  Comp.  Laws  Utah    1888,  p.  32,  §  2352. 

2  Philadelphia  &  R.  R.  Co.  v.  Anderson,  94  Pa.  St.  351.  In  this 
case,  a  passenger  train,  consisting  of  an  engine  reversed,  two  pas- 
senger cars,  and  a  milk  car,  was  wrecked  by  running  into  a  chasm 
caused  by  the  washing  out  of  an  embankment.  The  engine  and 
the  two  passenger  cars  fell  into  the  chasm;  the  millk  car  was  left 
standing  on  the  track.  Held,  that  running  the  engine  reversed,  es- 
pecially at  night  and  in  a  storm,  and  placing  the  milk  car  in  the 
rear  of  the  train,  were  circumstances  from  which  the  jury  might 
Infer  negligence.     Id. 

8  East  Line  &  R.  R.  Ry.  Co.  v.  Smith,  65  Tex.  167. 
(190) 


Ch.   5)  DUTY    OF    CARE    DURING    TRANSPORTATION.  §    /8 

§  77.     SAME— STREET  CARS. 

A  city  ordinance,  requiring  street  cars  driven  in  the 
same  direction  to  keep  at  least  300  feet  apart,  applies 
only  to  cars  separately  driven,  and  does  not  prohibit 
two  street  cars  from  being  coupled  together,  and  haul- 
ed by  a  single  team.^ 

§  78.     RATE  OF  SPEED. 

The  mere  fact  that  a  train  is  run  at  a  high  rate  of 
speed  is  not  of  itself  sufficient  to  prove  negligence  on 
the  part  of  the  carrier.  But  nothing  will  justify  or  ex- 
cuse running  a  train  at  a  high  rate  of  speed,  when  the 
track  is  known,  or  might,  by  the  exercise  of  proper 
care,  skill,  and  diligence,  be  known,  to  be  in  a  danger- 
ous condition.  Since  the  speed  of  the  train  is  a  mat- 
ter which  the  railway  company  may  lawfully  regulate 
and  control,  subject  to  the  limitation  that  the  hazard 
of  railway  travel  be  not  thereby  materially  increased, 
it  follows  that  even  a  high  rate  of  speed,  if  the  condi- 
tions of  railway  and  machinery  will  permit  it  without 
increasing  the  peril  of  the  passenger,  will  not  be  neg- 
ligence.^     But  the  question  whether  or  not  a  rapid 

§  77.    1  Bishop  V.  Railroad  Co.,  14  R.  I.  314. 

§  78.  1  Cliicago,  P.  &  St.  L.  Ry.  Co.  y.  Lewis,  145  111.  67,  33  N.  E. 
OGO;  Id.,  48  111.  App.  274;  Indianapolis,  B.  &  AV.  Ry.  Co.  v.  Hall, 
lOG  III.  371;  Grand  Riijiids  &.  I.  R.  Co.  v.  Huntley,  38  Mich.  537. 
The  running  of  a  mail  train  at  the  rate  ol;  30  or  35  miles  per  hour 
past  a  flag  station  is  not  negligence,  so  as  to  render  the  company 
liable  for  an  injury  resTdting  from  the  throwing  of  a  mail  bag 
from  the  postal  car.  Mustei-  v.  Railway  Co.,  (il  Wis.  3'-'5,  21  N. 
"VV.  223.     In  determining  whctljer  a  rate  of  speed  is  dangerous,  the 

(191) 


§    78  CARRIERS   OF  PASSENGERS.  (Ch.    5 

rate  of  speed  on  a  down  grade  around  a  curve  is-  neg- 
ligence is  one  of  fact  for  the  jury,  and  it  is  proper  to 
refuse  an  instruction  that  no  rate  of  speed  is  negli- 
gence per  se.-  And  a  railroad  company  is  guilty  of 
negligence  in  running  a  heavily  overloaded  train  of 
passenger  cars  at  such  a  rapid  rate  of  speed,  over  a 
curved  track  and  cross  tracks,  as  to  occasion  a  jar  or 
jolt  severe  enough  to  throw  some  of  the  passengers 
down,  and  to  jolt  off  one  of  the  passengers  riding  on 
the  platform.^ 

jury  cannot  consider  whether  the  velocity  was  greater  than  that 
which  had  been  practiced  before,  with  the  tacit  cou.sent  of  the  com- 
mnnity,  and  without  accident.  Cleveland,  C,  C.  &  I.  Ry.  Co.  v. 
Newell,  75  Ind.  542.  This  cas,e  apparently  overrules  Ohio  &  M. 
Ry.  Co.  T.  Selby,  47  Ind.  471.  which  held  that,  in  determining 
whether  or  not  a  train  was  running  at  a  higher  rate  of  speed  than 
was  safe  and  prudent,  the  jury  might  take  into  consideration  the 
rate  of  speed  at  which  other  trains  had  been  run  over  that  portion 
of  the  road,  both  before  and  after  the  accident.  See,  also,  Beery 
v.  Railway  Co.,  73  Wis.  197,  40  N.  W.  G87,  where  the  rate  of  speed 
was  held  immaterial,  in  an  action  for  injuries  caused  by  the  break- 
ing of  the  side  rods  of  the  engine. 

2  Louisville,  N.  A.  &  C.  R.  Co.  v.  Jones,  108  Ind.  551,  571,  9  N.  E. 
476.  In  an  action  for  injuries  sustained  in  the  derailment  of  a 
train  at  a  point  where  the  road  crossed  a  stream,  and  where  the 
roadbed  was  in  a  defective  condition,  evidence  that  the  character 
of  the  place  wa.s  known  to  the  engineer,  and  that  melting  snow 
and  storm,  with  heavy  fog,  prevailed,  and  that  the  engineer  had 
been  notified  of  high  water  in  the  vicinity,  warrants  the  submis- 
sion to  the  jury  of  the  question  whether  or  not  a  speed  of  20  miles 
per  hour  at  that  place  was  excessive.  Andrews  v.  Railway  Co., 
86  Iowa,  677,  53  N.  W.  399.  But  it  has  been  held  not  to  be  negli- 
gence per  se  for  a  train  to  round  a  curve  at  an  unusually  rapid 
rate  of  speed.  Chesapeake  &  O.  Ity.  Co.  v.  Chnves.  93  Ya.  ISJ,  24 
S.  E.  833. 

8  Lynn  v.  Southern  Pac.  Co.,  103  Cal.  7,  36  Pac.  1018. 
(192) 


Cll.   5)  DUTY    OF    CARE    DURING    TRANSPORTATION.  §    8U 

§  79.     SAME— FREIGHT  TRAINS. 

As  applied  to  freii;bt  trains  i-arryiiig  passengers, 
circnnistances  may  exist  which  wonld  render  a  speed 
of  40  miles  an  hour  negligence,  though  the  track  is  in 
good  and  safe  condition,  and  the  cars  pi-operly  equip- 
ped and  in  safe  condition,  except  as  to  latent  defects. 
The  train  might  be  of  unusual  size,  the  cars  improp- 
erly loaded,  or  loaded  beyond  their  capacity,  or  there 
might  be  at  the  particular  place  danger  of  collision 
with  stock,  because  the  track  was  not  fenced,  or  dan- 
ger of  collisions  with  teams  at  crossings,  on  account 
of  the  absence  of  warnings,  or  many  other  circumstan- 
ces which  would  render  it  imprudent  and  unsafe  to  run 
a  freight  train  at  such  a  rate  of  speed.^ 

§  80.     SAME— STREET  CARS. 

The  same  principles  which  determine  the  liability  of 
the  ordinary  railroad  to  its  passengers  for  running  pas- 
senger trains  at  a  high  rate  of  speed  also  apply  to 
street  railways.  Thus  the  mere  fact  that  a  street  car 
was  going  at  an  unusual  rate  of  speed  when  derailed 
on  a  straight  track  in  good  repair  does  not  prove  neg- 
ligence, unless  it  is  shown  that  the  rate  of  speed  was 
dangerous.^  Neither  is  a  cable  company  liable  for  in- 
juries to  a  passenger  thrown  from  the  car  by  a  lurch 
while  rounding  a  curve,  Avhere  the  speed  causing  the 
lurch  was  necessai*}^  to  carry  the  car  around  the  curve.- 

§  79.    1  Pennsylvania  Co.  v.  Newnieyer,  121)  Ind.  lol,  liS  N.  E.  SUO. 
§  80.     1  Perry  v.  Malarin,  107  Cal.  30:j,  40  Pao.  489. 
2  Ilite  V.  Railway  Co.,  130  Mo.  132,  32  S.  W.  :!3,  and  :!1  S.  W.  2i;2. 
V.  1  FET.CAH.PAS. lo  (193) 


§    80  CARRIERS   OF  PASSENGERS.  (Oil.    5 

But  where  a  motor  car,  while  going  around  a  sharp 
curve,  is  run  at  so  high  a  rate  of  speed  that  not  only 
passengers  standing,  but  those  sitting,  are  thrown  on 
their  knees,  the  question  of  excessive  speed  and  of  the 
carrier's  negligence  is  for  the  jury.^  And  a  cable  rail- 
way, in  running  its  train  at  a  rate  of  speed  prohibited 
by  ordinance,  is  guilty  of  negligence  per  se.* 

The  use  of  electricity  as  a  motive  power  by  passen- 

3  Francisco  v.  Railroad  Co.,  88  Hun,  464,  34  N.  Y.  Supp,  859.  See, 
also,  Elgin  City  Ry.  Co.  v.  Wilson,  56  111.  App.  364.  A  jury  is 
warranted  in  finding  a  street-car  company  negligent  in  running  a 
car  around  a  curve  at  such  a  rate  of  speed  as  to  throw  several  pas- 
sengers from  the  platform  to  the  ground,  and  to  toss  several  others 
from  their  seats  in  the  car.  East  Omaha  St.  R.  Co.  v.  Godola  (Neb.) 
70  N.  "W.  491.  It  is  negligence  for  a  street-car  driver  to  run  the 
car  at  an  unusual  rate  of  speed  in  approaching  a  switch  which  he 
knows  to  be  dangerous.  Seelig  v.  Railway  Co.,  18  Misc.  Hep.  383, 
41  X.  Y.  Supp.  656. 

4  Weber  v.  Railway  Co.,  100  Mo.  194,  12  S.  W.  804,  and  13  S.  W. 
587.  The  driver  of  a  street  car  left  his  team,  and  persisted  in 
staying  in  the  car,  collecting  fares  and  making  change  for  passen- 
gers, after  he  was  notified  by  passengers  of  the  importance  of  go- 
ing to  his  team,  on  account  of  the  unusual  rapidity  with  which 
they  were  moving.  Held,  in  view  of  the  fact  that  he  was  con- 
scious of  the  near  approach  to  a  street  where  there  was  an  abrTipt 
down  grade,  that  the  jury  was  warranted  in  finding  him  guilty  of 
negligence,  and  in  holding  the  company  responsible  for  injuries  to 
a  passenger  sustained  in  the  derailment  of  the  car  owing  to  its  un- 
governable speed.  Wllkerson  v.  Railway  Co.,  26  Mo.  App.  144. 
Where,  owing  to  an  accidental  obstruction  of  a  street-car  track,  a  car 
Is  necessarily  lifted  on  a  parallel  track,  and  run  in  the  oppos,ite  di- 
rection from  which  cars  are  usually  run  on  that  track,  it  becomes 
the  duty  of  the  employes  to  exercise  more  caution  to  keep  the  car 
on  the  track  than  would  be  required  were  it  run  in  the  usual  direc- 
tion; and  if  the  car  is  driven  rapidly,  and  jumps  the  track,  the 
question  whether  defendant  is  guilty  of  negligence  is  for  the  jury. 
White  V.  Railway  Co.,  61  Wis.  .536,  21  N.  W.  524. 

(194) 


Ch.   5)  DUTY    OF    CARK    DURING    TRANSPORTATION.  §    81 

ger  railway  companies  lias  created  new  couditious, 
from  which  new  duties  arise.  The  greater  speed  at 
which  cars  are  moved  increases  the  danger  to  passen- 
gers and  to  persons  on  the  streets,  and  of  those  dan- 
gers all  persons  must  take  notice.  When  there  is  an 
invitation  or  permission  to  passengers  to  ride  on  rear 
platforms,  it  is  the  duty  of  the  company  to  observe  a 
higher  degree  of  care  in  the  running  of  the  cars  at 
points  where  there  is  danger  that  they  may  be  thrown 
off.  Hence  it  is  a  question  for  the  jury  whether  a 
street-railway  company  is  negligent  in  running  an  elec- 
tric car,  the  platform  of  w^hich  is  crowded  with  passen- 
gers, at  the  rate  of  15  miles  an  hour  down  grade  and 
around  a  sharp  curve.  ^  Servants  of  an  electric  street 
railway  are  bound  to  know  the  difficulty  of  controlling 
a  car  when  there  is  snow  on  the  rails;  and  where,  at 
such  a  time,  they  approach  a  heavy  down  grade  at  such 
an  unusual  rate  of  speed  as  to  cause  their  car  to  slide 
down  the  track,  though  the  brakes  are  properly  set, 
the  company  is  liable  for  injuries  to  a  passenger.* 

§  81.     SUDDEN  JERK  OF  CARS. 

We  have  seen  that  to  start  a  street  car  with  a  jerk 
while  a  passenger  is  getting  on  or  otl'  is  evidence  of 
negligence.^  A  different  question,  however,  arises 
when  a  passenger  already  on  the  car  is  injured  by  its 
jolting  or  jerking.     As  a  general  rule,  a  street-cai-  com- 

6  Rol)er  V.  Traction  Co..  (Pa.)  30  Atl.  245. 

6  Danville  Streel-Car  Co.  v.  I'ayuc  (Va.)  24  S.  E.  904. 

§  81.    1  See  ante,  §§  U8,  72. 

(J  95) 


§    81  CARRIERS   OF  PASSENGERS.  (Ch.    5 

pany  is  not  liable  for  injuries  to  passengers  caused  by 
starting  its  car  in  the  usual  and  ordinary  manner;  but 
any  unusual  manner  of  starting  raises  a  question  of 
negligence  which  is  for  the  jury.^  The  fact  that  the 
car  gives  a  sudden  movement,  when  started,  is  entire- 
ly consistent  with  the  supposition  that  the  horses  were 
started  in  a  careful  and  prudent  manner;  for  a  car 
loaded  w^ith  passengers  must  necessarily  require  a 
strong  pull  of  the  horses  to  overcome  the  resisting  in- 
ertia, and  it  must  be  a  thing  of  constant  occurrence, 
and  unavoidable.^  Keither  is  it  evidence  of  negli- 
gence in  a  driver  of  a  horse  car  that  he  whipped  the 
horses  when  about  to  start  a  car  full  of  passengers,  un- 
less there  appears  to  be  something  unusual  in  his  man- 
ner of  whipping  them;  and  a  passenger  who  w^as 
thrown  from  the  front  platform  of  the  car  in  which  he 

2  Continental  P.  Ry.  Co.  v.  Swain  (Pa.)  13  Wkly,  Notes  Cas.  41. 
In  tliis  case  it  was  held  that  where  the  horses  drawing  a  crowded 
street  car  are  balky,  and  the  conductor  obtains  the  aid  or  a  team 
of  eight  mules,  starting  the  car  with  a  sudden  jerk,  and  throwing 
one  of  the  passengers,  the  question  of  defendant's  negligence  is  for 
the  jury. 

3  Hayes  v.  Railroad  Co.,  97  N.  Y.  259.  In  an  action  for  the  death 
of  a  passenger  who  was  hurled  over  the  dashboard  of  the  front 
platform,  where  he  was  standing,  evidence  by  a  fellow  passenger 
tliat  he  experienced  a  jerk,  as  if  the  driver  had  put  the  brake  on, 
and  then  let  it  off,  or  as  if  there  was  a  rock  on  the  track,  does  not 
show  any  negligence  on  the  part  of  the  driver  in  applying  the  brake. 
Bradley  v.  Railroad  Co.,  90  Hun,  419,  35  N.  Y.  Supp.  918.  But  it 
is  negligence  for  a  street-car  driver,  against  warning,  to  drive  in  a 
trot  into  a  trench  six  inches  deep,  excavated  between  the  rails  and 
along  their  sides  by  the  company's  employes,  and  it  is  liable  for  in- 
juries to  a  passenger  in  consequences  thereof.  Caub  v.  Railroad  Co., 
09  Hun,  138,  23  N.  Y.  Supp.  268. 

(196) 


Ch.   5)  DUTY    OF    CARE    DURING    TRANSPORTATION.  §    82 

was  riding  should  be  nonsuited,  where  that  is  his  only 
evidence  of  negligence.* 

The  same  principle  applies  to  railroad  trains.  An 
engineer,  who,  on  arriving  at  a  station,  has  shut  off 
steam,  with  the  intention  of  letting  the  momentum  of 
the  train  carr^'  it  to  its  destination,  is  not  guilty  of 
negligence,  when  he  finds  the  momentum  insufficient, 
in  letting  on  more  than  the  exart  (juautity  of  steam 
necessary  to  overcome  the  friction  of  the  frogs  and 
switches,  thereby  creating  a  jerking  motion  of  the 
train.^ 


§  82.     CROWDED  CARS  AND  PLATFORMS. 

The  courts  are  divided  on  the  question  whether  it  is 
negligence,  as  matter  of  law,  in  a  railroad  company  to 
permit  a  train  to  become  so  crowded  that  passengers, 

4  May  V.  Railway  Co.,  49  N.  J.  Law,  44.3,  9  Atl.  688,  reversing  48 
K.  .1.  Law,  401,  5  Atl.  276.  The  mere  fact  that,  after  Avateriug  his 
horses,  a  driver  of  a  horse  car  lets  go  the  l)rake.  and  starts  np  the 
horses,  as  a  passenger  who  has  been  riding  on  tlie  steps  of  the  front 
l)latform  is  about  to  leave  to  go  to  the  rear  platform,  is  not  negli- 
gence, though  the  driver  had,  about  n  minute  before,  told  llie  pas- 
senger to  go  on  the  rear  platform.  Brown  v.  Railway  Co.,  49  Mich. 
153,  13  X.  W.  494. 

5  Chicago,  B.  &  Q.  R.  Co.  v.  Ha/.z;ird.  L'(!  111.  :'.73.  Failure  of  a 
railroad  company  to  stop  its  train  at  a  raihoad  crossing,  as  retpiired 
by  statute,  is  no  breacli  of  duty  towards  a  p.isscnger  who  desired 
to  alight  at  that  point;  and  hence  a  sudden  iiu  rc-ise  of  speed  near 
the  crossing,  by  means  of  which  the  passenger,  while  aligliting, 
was  thrown  tothe  ground,  does  not  render  it  lial)le.  Avhere  it  had 
no  notice  that  he  had  placed  himself  in  a  jtositioii  wliere  sucli  jerk 
would  subject  him  to  peril.  Louisville,  IS'.  A.  &.  C.  Ry.  Co.  v.  Jolui- 
son,  44  111.  App.  56. 

(107) 


§    82  CARRIERS   OF  PASSENGERS.  (Ch.   5 

unable  to  obtain  seats,  are  injured  by  reason  of  sud- 
den jolts  or  jars  of  tbe  train.  All  autborities  unite  in 
bolding  tbat  it  is  tbe  duty  of  railroad  companies  to  fur- 
nisb  suitable  sittin<^  accomniodations  for  its  ordinary 
number  of  ])assengers,  or  even  for  an  extraordinary 
number,  on  reasonable  notice.  One  class  of  cases, 
however,  holds  that,  where  passengers  apply  for  trans- 
])ortation  in  extraordinary  or  unexpected  numbers, 
railroad  companies  should  be  held  only  to  the  exercise 
of  such  reasonable  diligence  in  providing  cars  as  may 
be  consistent  with  the  particular  circumstances  of 
<'ach  case.  The  fact  that  the  company  sells  tickets  to 
more  passengers  than  it  can  comfortably  accommo- 
date does  not  render  it  guilty  of  negligence  as  matter 
of  law,  though  doubtless  greater  care  is  required  in  the 
running  and  managing  of  the  train  thus  crowded.^ 
This  view  seems  to  have  been  adopted  by  the  supreme 
court  of  the  United  States,  which  holds  that  the  fail- 
ure of  a  ferryboat  to  provide  enough  seats  to  accom- 
modate all  its  passengers  on  a  particular  trip  is  not 
negligence,  as  matter  of  law,  which  renders  it  liable  to 
a  standing  passenger,  who  was  thrown  to  the  floor  by  a 
concussion  of  the  boat  with  its  dock,  unless  it  appears 
that  a  less  number  of  seats  was  provided  than  was  cus- 
tomary or  suthcient  for  those  who  ordinarily  preferred 
to  be  seated."  So  it  has  been  held  that  a  passenger 
who  voluntarily  boards  a  crowded  train,  and  takes  his 
jjlace  on  the  platform  of  a  car  without  complaint,  can- 

§  SL>.    1  Chicago  &  N.  W.  R.  Co.  v.  Carroll,  5  III.  App.  201. 
2  F.urton  v.  Ferry  Co.,  114  U.  S.  474,  5  Sup.  Ct.  9G0. 
(198) 


Ch.  5)  DUTY    OF    CARE    DURING    TRANSPORTATION.  §    82 


not  assign  the  overcrowding  of  tlie  train  as  negligence 
on  the  part  of  the  railroad  company.^ 

On  the  other  hand,  the  New  York  court  of  appeals 
has  held  that  the  stoppage  of  a  railroad  train  at  a  reg- 
ular station  is  an  invitation  to  the  public  to  take  pas- 
sage thereon,  and  the  sale  of  tickets  for  that  train 
binds  the  company  to  furnish  its  passengers  a  safe  and 
secure  place  in  which  to  ride.  Proof  of  its  omission 
so  to  do,  whereby  the  passenger  is  obliged  to  ride  on 
the  car  platform,  is  evidence  of  negligence.'*  So  the 
supreme  court  of  Illiuois  has  held  that,  where  the  num- 
ber of  passengers  who  have  the  right  to  take  a  certain 
train  are  in  excess  of  its  capacity,  the  railroad  com- 
l^any  must  exercise  the  same  degree  of  care,  vigilance, 

8  Olivier  v.  Railroad  Co.,  43  La.  Ann.  8(M,  9  South.  -131. 

4  Werle  v.  Railroad  Co.,  98  N.  Y.  G50.  It  is  uesligence  in  a  rail- 
road company  to  allow  its  cars  to  become  so  crowded  as  to  endan- 
jier  the  safety  of  those  who  tirst  obtain  the  available  room,  or  to 
permit  persons  to  crowd  upon  the  platform  of  the  car  in  the  vain 
hope  of  finding  room  inside.  Chicago  &  A.  R.  Co.  v.  Dumpser,  60 
111.  App.  92.  As  a  passenger  approached  an  excursion  train,  the 
conductor  called  out,  "There  is  lots  of  room  inside."  The  passen- 
ger thereupon  got  on  the  car,  but  could  not  get  inside,  owing  to 
its  crowded  condition,  nor  could  he  get  off,  because  of  the  crowd 
behind,  and  he  was  compelled  to  ride  on  the  front  platform.  He 
was  jolted  off  by  the  crowd  while  the  train  was  in  motion.  Held, 
that  the  question  of  defendant's  negligence  was  for  the  jury.  Den- 
nis v.  Railroad  Co.,  105  Pa.  St.  ()24.  31  Atl.  52.  Civ.  Code  Cal.  §  2184, 
requires  a  common  carrier  of  i)ersons  to  provide  a  sutlicient  ntim- 
ber  of  vehicles  to  accommodate  all  passengers  wlio  can  be  reason- 
ably expected  to  require  carriage  at  any  one  time.  Section  2185 
provides  tliat  a  common  carrier  of  persons  must  furnish  every  pas- 
senger with  a  seat.  He  must  not  overload  his  vehicle  by  receiving 
and  carrying  more  passengers  than  its  rated  cai)acity  allows.  To 
the  same  effect,  see  Civ.  Code  Cal.  §§  48.i,  2102,  21U3. 

(11)9) 


o    gg  CARRIERS   OF  PASSENGERS,  (Ch.   5 

and  forethought  in  providing  additional  cars  as  it  Is 
bound  to  exercise  in  its  other  relations  to  its  passen- 
gers.' 

§  83.     SAME— STREET  CARS. 

The  exposure  of  a  passenger  to  a  danger  which  the 
exercise  of  reasonable  foresight  would  have  anticipat- 
ed, and  due  care  avoided,  is  negligence  on  the  part  of 
the  carrier.  Hence  the  question  whether  the  em- 
ployes on  a  street  car  are  negligent  in  permitting  more 
passengers  to  get  on  the  car  than  can  sit  or  stand  with- 
in it,  and  to  crowd  both  platforms,  is  one  of  fact  for 
the  jury,  in  an  action  for  injuries  to  one  who  was 
crowded  from  the  platform.'     So  it  is  evidence  of  neg- 

5  Chicago  &  A.  R.  Co.  v.  Dumser,  161  111.  190,  43  N.  E.  698.  In 
Camden  &  A.  R.  Co.  v.  Hoosey.  99  Pa.  St.  492.  it  is  said:  "Without 
assenting  to  the  broad  proposition  contended  for,  that  a  railroad 
company,  using  steam  motive  power,  is  bound  absolutely,  and  un- 
dei-  all  circumstances,  to  provide  every  passenger  on  the  train  with 
a  seat,  it  cannot  be  questioned  that,  as  a  general  rule,  and  under 
ordinary  circumstances,  it  is  the  duty  of  such  company  to  provide 
suitable  car  accommodations  and  seats  for  those  whom  it  under- 
takes to  carry;  and  if  a  passenger,  exercising  reasonable  care  and 
prudence,  is  injured  in  consequence  of  the  company's  neglect  of 
duty  in  that  regard,  the  latter  is  liable  to  respond  in  damages  for 
the  injury  thus  occasioned  solely  by  its  own  negligence."  As  to 
duty  of  railroad  companies  to  furnish  suitable  accommodations,  see 
post,  c.  20. 

§  83.  1  Lehr  v.  Railroad  Co.,  118  N.  Y.  550,  23  N.  E.  889.  Where 
cars  on  an  elevated  train  are  so  crowded  that  the  trainmen  can- 
not get  at  the  hand  brakes  in  time  to  avoid  a  collision,  the  ques- 
tion of  defendant's  negligence  is  for  the  jury.  Dlabola  v.  Railway 
Co.  (Com.  i'l.)  8  N.  Y.  Supp.  334,  athrmed  in  134  N.  Y.  585,  31  N.  E. 
628.  A  street-railroad  company  which  takes  on  such  a  large  num- 
ber of  passengers  that  many  are  compelled  to  ride  on  the  foot- 
boards is  guilty  of  negligence  in  running  the  car  so  near  the  in- 
(200) 


Ch.   5)  DUTY    OF    CARE    DURING    TRAiNSPORTATION.  §    83 

ligence  for  an  elevated  street-car  company  to  permit 
its  train  to  become  so  crowded  that  passengers  are 
compelled  to  stand  on  tlie  platform,  and  that  the  gates 
cannot  be  kept  closed,  as  required  by  statute.'  So  the 
supreme  court  of  Nebraska  has  held  that  it  is  evidence 
of  negligence  on  the  part  of  a  street-railroad  company 
to  carry  passengers  greatly  in  excess  of  the  seating 
capacity  of  its  cars,  and  to  permit  them  to  stand  on 
the  platform  and  steps  of  the  cars.^  A  passenger  com- 
pelled to  stand  on  the  front  platform  of  a  crowded 
street  car  may  recover  for  injuries  sustained  in  being 
thrown  from  the  car  by  a  jar  caused  by  a  defective 
track  and  the  sudden  starting  of  the  car.* 

But  these  views,  though  they  would  seem  to  be  un- 
questionably sound,  have  not  been  permitted  to  go  un- 
challenged. One  of  the  circuit  courts  of  Ohio  has  held 
that  it  is  not  negligence  to  crowd  street  cars,  or  the 
platforms  of  street  cars.  It  is  daily  and  hourly  done  in 
all  places  where  street  cars  are  run.' 

tersection  of  a  switch  with  the  main  traclv  that  the  oars  on  the 
two  tracks  cannot  pass  each  other  without  injury  to  the  passengers 
on  the  footboards.     Topeka  City  Ry.  Co.  v.  lllsss.  38  Kan.  375.  10 

Pac.  r,07. 

2  Graham  v.  Railway  Co..  141)  N.  1.  330,  i--  N-  K-  i>lT,  reversing 
8  Misc.  Rep.  :'.0.-..  28  X.  Y.  Supp.  739. 

3  Pray  v.  Railway  Co..  44  ^'el).  107,  02  N.  W.  447. 
*  Chicago  City  R.  Co.  v.  Young,  02  111.  2;*.8. 

5  Mt.  Adams  &  E.  P.  I.  Ry.  Co.  v.  Reul.  4  Ohio  Cir.  Ct.  302.  In 
Chicago  City  R.  Co.  v.  Considiue,  50  111.  A  pp.  472.  it  is  held  that  to 
permit  a  street  car  to  become  crowded  with  passengers  is  not  neg- 
ligence, as  matter  of  law,  so  as  to  render  the  company  liable  for 
an  injury  to  a  passenger  crowded  otf  by  the  other  passengers. 

(201) 


§    85  CARRIERS  OF  PASSENGERS.  (^Cll. 


§  84.     SAME— STAGECOACHES. 

A  stagecoach  proprietor  is  liable  for  au  injury  to  a 
passenger  from  the  upsetting  of  a  coach  caused  by  its 
beino-  overloaded.  To  determine  Avhether  the  coach 
was  overloaded,  tJie  jury  must  take  into  consideration 
the  number  of  passengers,  the  weight  of  baggage,  the 
general  character  of  the  road,  and  especially  the  por- 
tion of  it  over  which  the  coach  was  passing  when  the 
accident  occurred.^  To  load  over  400  pounds  of  iron 
on  a  stagesleigh  resting  on  narrow  double  runners, 
and  heavily  loaded  with  passengers,  is  negligence  as 
a  matter  of  laAV,  which  will  render  the  carrier  liable 
for  injuries  to  a  passenger  caused  by  the  overturning 
of  the  sleigh  on  a  smooth  and  slippery  part  of  the  road." 

§  85.     PERMITTING  PASSENGER  TO  RIDE  ON  PLAT- 
FORM OF  STREET  CAR. 

To  permit  an  adult,  or  a  person  reasonably  compe- 
tent to  care  for  himself,  to  ride  on  the  front  platform 
of  a  street  car,  whether  crowded  or  not,  is  not  negli- 
gence per  se.  The  carrier,  however,  is  bound  to  high- 
er care  and  vigilance  when  the  x)latform  is  crowded,  in 

§  84.    1  Maury  v.  Talmadge,  2  McLean.  147,  Fed.  Cas.  No.  9,315. 

2  Derwort  v.  Loomer.  21  Conn.  24.j.  Luggage  was  placed  on  the 
roof  of  defendant's  coach,  without  any  iron  railing  between  the  lug- 
gage and  the  passengers.  I'laiutiff,  au  outside  passenger,  seated 
with  his  back  to  the  luggage,  Avas,  by  a  sudden  jolt,  thrown  from 
the  coach,  and  his  leg  was  broken.  Held,  that  the  malconstruction 
of  the  coach,  and  the  placing  of  luggage  in  an  improper  position, 
was  evidence  of  negligence.  Curtis  v.  Driukwaier,  2  Barn.  &  Adol. 
IG'J. 

(202) 


Ch.  5)     DUTY  OF  CARE  DURING  TRANSPORTATION.       §  85 

proportion  as  that  place  is  more  dangerous  than  a  seat 
inside  the  cai';  and,  in  the  event  of  an  injury,  this  fact 
should  be  considered  by  the  jury,  in  connection  with 
all  the  circumstances  of  the  case,  in  determining  the 
responsibility  of  the  carrier.^  Where  a  female  passen- 
ger is  injured  while  alighting  from  a  street  car  because 
she  is  prevented  from  taking  hold  of  the  dasher  by  a 
passenger  leaning  against  it,  the  jury  is  the  proper 
tribunal  to  find  whether  the  carrier  was  guilty  of  neg- 
ligence in  permitting  a  passenger  to  remain  standing 
on  the  platform  in  such  a  position  as  to  interfere  with 
other  passengers  in  alighting.^ 

''But  in  the  case  of  a  passenger  who  is  obviously  and 
manifestly  incompetent,  either  from  extreme  youth  or 
other  cause,  to  exercise  any  proper  judgment  or  dis- 
cretion for  his  own  safety,  a  somew^hat  larger  measure 
of  duty  may  be  said  to  devolve  upon  the  conductor  of 
the  car  than  under  ordinary  circumstances.  It  must 
be  conceded,  of  course,  that  he  is  not  held  to  the  exer- 
cise of  critical  skill  or  judgment;  for  the  performance 
of  his  ordinary  duties,  in  a  crowded  car,  may  give  him 
little  opportunity  to  observe  closely  the  capacity  or  in- 
telligence of  a  particular  person  in  his  charge.  He  is, 
in  this  respect,  held  only  to  the  exercise  of  that  degree 
of  discrimination  which  a  reasonably  prudent  and  ob- 
serving man  would  be  expected  to  exercise  under  the 
circumstances.  His  duties  require  him  to  give  his 
attention,  not  only  to  those  who  may  wish  to  board  the 

§  85.  1  Sandford  v.  Railroad  Co.,  13G  Ta.  St.  84,  20  Atl.  799.  As 
to  contributory  ueglife'ence  of  passenger  in  riding  on  platform,  see 
post.  §  107. 

2  Neslie  v.  Railroad  Co.,  113  Pa.  St.  300,  U  Atl.  72. 

(203) 


I    85  CARRIERS   OF  PASSENGERS.  ifih .    5 

car,  but  to  those  who  wish  to  leave  it,  as  well  as  to 
such  as  reniaiu.  It  is  his  duty  to  collect  the  fares,  reg- 
ulate the  movemeuts  of  the  car,  aud  generally  to  con- 
duct the  affairs  of  the  company  in  his  charge.  He 
may,  therefore,  when  the  car  is  crowded,  and  passen- 
gers are  passing  in  and  out,  have  little  chance  to  test 
with  accuracy  the  intelligence  or  capacity  of  the  in- 
dividual passenger,  but  he  is  bound  to  give  his  undi- 
vided attention  to  his  business;  and,  if  any  person 
boards  his  car  who  is  obviously  incompetent  to  choose 
a  place  of  safety,  or  whom  he  knows,  or  as  an  observ- 
ing and  prudent  man  ought  to  know,  to  be  thus  incom- 
petent, it  is  his  duty  to  exercise  the  highest  degree  of 
care  and  vigilance  consistent  with  the  performance  of 
his  ordinary  duties  for  his  safety."  ^  It  is  accordingly 
held  that  to  allow  a  boy  of  tender  years  to  ride  on  the 
front  platform  of  a  street  car  is  evidence  of  negligence 
sufficient  to  go  to  the  jury.*     Aud  the  mere  fact  that 

s  Pandford  v.  Railroad  Co.,  13(5  Pa.  St.  84,  20  Atl.  799.  In  this 
case,  a  boy  eiglit  years  old  pushed  through  a  crowded  car  to  the 
front  platform.  He  was  there  found  by  the  conductor  when  taking 
up  fares,  and,  becoming  frightened  by  the  conductor's  accusation  of 
another  boy  with  attempting  to  steal  a  ride,  he  jumped  from  the 
moving  car,  and  was  injured.  Held,  that  there  was  no  evidence  of 
negligence  on  the  part  of  the  company  to  go  to  the  jiu'y. 

4  Jensen  v.  Barbour,  15  Mont.  582,  39  Pac.  906;  W'est  Philadelphia 
P.  Ry.  Co.  V.  Gallagher,  108  Pa.  St.  524;  Philadelphia  C.  P.  Ry. 
Co.  V.  Hasaard,  75  Pa.  St.  307;  PittsDurg,  A.  &  M.  P.  Ry.  Co.  v.  Cald- 
well, 74  Pa.  St.  421.  In  this  last  case  it  was  said:  "It  is  high  time 
that  the  directors  of  a  passenger  railway  should  understand  that 
it  is  their  duty,  not  only  to  make  and  publish  rules  forbidding  their 
conductors  and  drivers  from  allowing  'children  to  get  on  and  off 
the  front  platform,'  or  to  ride  there,  Init  to  see  ;hat  these  rul.^s 
are  rigidly  enforced  by  their  employes.  Under  no  ciix'umstances 
(2U4) 


Ch.  5)  DUTY    OF   CARE    DURING    TRANSPORTATION.  §    85 

the  driver  has  warned  the  child  not  to  ride  there  does 
not  relieve  the  company  from  liability,  but  it  is  the 
driver's  duty  to  compel  the  child  to  ride  in  a  proper 
place  in  the  car.^  So  it  is  negligence  in  the  driver  of 
a  street  car  to  needlessly  withdraw  from  the  front  plat- 
form, leaving  two  boys  thereon;  and  the  company  is 
liable  for  injuries  to  one  of  them,  who  fell  from  the  car 
in  a  scramble  engaged  in  by  them  to  drive  the  horses." 
But  the  rule  that  the  conductor  of  a  street  car  should 
not  permit  children,  to  ride  on  the  platform  does  not 
apply  to  a  case  where,,  on  approaching  a  boy's  destina- 
tion, the  conductor  signals  him  to  come  on  the  plat- 
form, and  says,  "The  next  corner  is  yours."  ^ 

It  is  doubtful,  however,  whether  these  decisions  are 
applicable  to  the  modern  street  cars,  the  platforms  of 
which  are  not  only  guarded  with  screens  and  rails,  but 
provided  with  doors  or  gates,  so  as  to  be  completely 
inclosed  during  transportation. 

should  they  permit  children  to  get  on  and  ol¥  the  front  platform  of 
a  street  car,  much  less  to  ride  in  a  place  of  so  much  danger  to  life 
and  limb.     If  they  do,  negligence  is  imputable  to  the  company,  and 
it  will  be  held  responsible  for  any  injury  occasioned  thereby." 
6  East  Saginaw  City  Ky.  Co.  v.  Bohn,  27  Mich.  503. 

6  Metropolitan  St.  R.  Co.  v.  Moore,  83  Ga.  453,  10  S.  E.  730.  It  is 
negligence  in  the  driver  of  a  street  car  to  go  inside  to  collect  fares, 
with  no  one  in  charge  of  the  horses,  and  to  permit  a  boy  nine 
years  old  to  stand  on  the  steps  of  the  front  platform  wiiile  tli.i 
train  is  so  abandoned.    Saare  v.  Railway  Co.,  20  Mo.  App.  211. 

7  Cronan  v.  Railway  Co.,  4t)  La.  Ann.  65,  21  Soutli.  1(J3. 

(205) 


§    87  CARRIERS  OF  PASSENGERS.  (Ch.   5 

§  86.     VESTIBULED  TRAINS  AND  SLEEPING  CARS. 

The  purpose  of  vestibuled  cars  is  to  add  to  the  com- 
fort, safety,  and  conyenience  of  passengers,  more  par- 
ticularly while  passing  from  one  car  to  another.     The 
presence  of  such  an  appliance  on  a  train  is  a  procla- 
mation by  the  company  to  the  passenger  that  it  has 
provided  him  a  safe  means  of  passing  from  one  car  to 
another,  and  is  an  invitation  for  him  to  use  it  as  his 
convenience  or  necessity  may  require.    Hence,  where  a 
railroad  company  runs  a  vestibuled  train,  it  is  a  ques- 
tion of  fact  for  the  jury  whether  the  company  is  neg- 
ligent in  leaving  the  vestibule  connection  w^ithout  a 
light,  and  the  outside  door  of  the  vestibule  open,  with- 
out a  guard  rail  or  other  protection,  while  the  train  is 
running  rapidly  on  a  dark  night;   deceiving  a  passen- 
ger, who  mistakes  the  open  door  for  the  one  leading 
into  the  car,  and  who  is  thrown  from  the  train  through 
the  open  door.^     A  sleeping-car  company  which  places 
a  passenger  in  an  upper  berth,  must  furnish  reason- 
ably safe  means  for  him  to  get  out  of  it;  and,  where  it 
provides  electric  call  bells  for  such  berths,  it  is  negli- 
gence in  the  conductor  or  porter  not  to  respond  to  a 
call  when  rung  by  a  passenger.^ 

§  87.     SLAMMING  OF  CAR  DOOR. 

The  question  of  the  carrier's  negligence  when  car 
doors  slam  on  a  passenger's  hand  is  not  free  from  diflft- 
culty.     As  a  general  proposition,  where  a  passenger  is 

§  86.    1  Bronson  v.  Oakes,  22  C.  C.  A.  520,  76  Fed.  734. 
2  Pullman's  Palace-Car  Co.  v.  Fielding,  G2  111.  App.  577, 
(206) 


Ch.   5)  DUTY    OF    CARE    DL'RING    TRANSPORTATION".  §    87 

injured  iu  this  iiianuer,  while  entering  or  leaving  tlie 
oar,  by  reason  of  the  sudden  starting  of  the  train,  the 
question  of  the  carrier's  negligence  is  for  the  jury,  on 
the  ground  that  he  has  not  allowed  the  passenger  a 
reasonable  time  to  enter  or  to  alight.  A  prima  facie 
case  of  negligence  is  made  out  by  evidence  that,  while 
getting  on  board  a  train,  a  passenger's  finger  was 
mashed,  as  he  caught  hold  of  the  door  sill,  by  the  slam- 
ming shut  of  the  door  because  of  the  sudden  starting 
of  the  train/  A  railroad  company  is  guilty  of  negli- 
gence in  starting  its  train  so  violently  as  to  cause  the 
door  to  slam  on  the  hand  of  a  passenger,  who  was 
standing  on  the  platfonn,  prepa;'atory  to  leaving  the 
car.-  Where  a  passenger  is  getting  into  a  railway  car- 
riage at  a  station,  and  places  his  hand  on  the  back  of 
the  open  door  to  aid  him  in  mounting  the  step,  it  is 
negligence  for  the  guard,  without  any  wai'ning,  to 
close  the  door,  so  as  to  jam  his  finger  between  the  door 
and  the  door  post.'     And  the  fact  that  the  door  of  a 

§  87.  1  Poole  Y.  Banking  Co.,  89  Ga.  320,  15  S.  E.  321,  distinguish- 
ing Hardwiclv  v.  Banking  Co.,  85  Ga.  507,  11  S.  E.  832. 

2  Kentucky  &  I.  Bridge  Co.  v.  Quinkert,  2  Ind.  App.  244,  28  N.  E. 
S38. 

3  Fordham  v.  Railway  Co.,  L.  R.  3  C.  P.  3G8,  L.  R.  4  C.  I'.  019.  A 
12  year  old  boy  entered  a  third-claims  railway  carriage  at  night,  and 
as  he  was  seating  himself  he  placed  his  linger  on  a  part  of  the 
door.  His  father  was  behind  him,  getting  into  the  carriage,  wh«Mi 
a  porter  violently  closed  the  door,  ciaishing  the  boy's  fingers,  and 
striking  the  father  on  the  back.  Held,  th.it  there  was  evidence  of 
negligence  on  the  part  of  the  porter,  which  was  properly  submit- 
ted to  the  jury.  Coleman  v.  Railway  Co.,  4  Hurl,  it  C.  ("►!)!>.  A 
passenger  on  an  elevated  railroad  arose  as  the  train  approaclicd  her 
station,  and  passed  to  the  door  of  the  car,  which  the  brakeman  held 
open.     The  jar  of  the  train  impelled  her  to  place  her  hand  ou  the 

(207) 


§    87  CARRIERS   OF  PASSENGERS.  (Ch.    5 

railway  carriage  is  imperfectly  fastened  is  evidence  of 
negligence  on  the  part  of  the  company,  even  if  the 
train  was  not  in  motion  when  the  accident  happened.* 
But  the  rule  is  different  after  the  passenger  has  safe- 
ly entered  the  car.  It  is  not  negligence  in  the  train 
porter  to  close  a  car  door,  without  giving  warning  of 
the  fact  in  advance,  so  as  to  render  the  company  liable 
for  injuries  to  a  passenger,  whose  hand  rested  in  the 
door  frame.  Unless  there  is  some  special  reason  for 
giving  notice  or  warning,  no  principle  of  law  requires 
this  to  be  done.  It  is  sufficient,  generally,  if  the  door 
of  the  car  is  open  and  shut  with  usual  and  proper  care, 
in  the  ordinary  way,,  without  any  public  warning,  or 
parade  and  ado  over  the  matter.^  A  railroad  company 
is  not  liable  for  injuries  to  a  passenger  who  put  his 
hand  in  the  door  sill  to  steady  himself  just  as  the  door 
was  being  closed  by  some  one  who  did  not  know  of 
plaintiff's  danger,  since  the  company  is  guilty  of  no 
negligence.* 

door  casing,  when,  as  the  train  stopped,  the  brakeman  let  go  of  the 
door,  which  slammed  on  her  hand,  injuring  it.  Held,  that  the  brake- 
man,  who  had  been  so  seated  that  he  must  have  seen  that  plaintiff 
wished  to  get  off  at  the  station,  was  negligent  in  letting  go  of  the 
door,  in  the  absence  of  suitable  appliances  to  hold  it  open  when  the 
train  stopped.  Colwell  v.  Railway  Co.,  57  Hun,  452,  10  N.  Y.  Supp. 
636.     See,  also,  McGlynn  v.  Railroad  Co.,  6  N.  Y.  St.  Rep.  51. 

4  Richards  v.  Railway  Co.,  28  Law  T.  (N.  S.)  711. 

B  Gulf,  H.  &  S.  A.  Ry.  Co.  v.  Davidson.  61  Tex.  204.  A  railway 
porter  is  not  guilty  of  negligence  in  shutting  the  carriage  door  after 
a  passenger  has  completely  entered  the  carriage,  but  before  he  has 
taken  his  seat,  and  hence  he  cannot  recover  for  having  his  thumb 
jammed  in  the  hinge  of  the  door.  Maddox  v.  Railway  Co.,  38  Law 
T.  (N.  S.)  4.58. 

«  Ham  v.  Banking  Co.,  97  Ga.  411,  24  S.  E.  152. 
(208) 


Cll.   O)  DUTY    OF    CARE    DURING    TRANSPORTATION.  §    88 

§88.     COLLISIONS— BETWEEN     TRAINS     RUNNING 

ON  SAME  TRACK. 

The  principle  exacting  of  the  carrier  the  highest  de- 
gree of  care  and  skill  applies  nowhere  more  fittingly 
than  in   cases  of  collision  between  rapidly   moving 
trains.      As  a  rule,  collisions  do  not  happen  unless 
some  one  has  blundered,  and  in  general  the  courts  are 
disposed  to  hold  railroad  companies  strictly  account- 
able for  accidents  thus  occurring.     Where  a  railroad 
track  is  used  by  tAvo  companies,  it  is  their  duty  to 
adopt  such  rules  and  regulations  for  the  running  of 
trains  as  will  insure  safety,  and,  having  adopted  them, 
they  must  conform  to  them,  or  be  responsible  for  all 
consequences  resulting  from  a  departure  from  them. 
Hence  it  is  gross  negligence  for  one  of  the  companies 
to  run  a  train  several  hours  out  of  time,  when  a  train 
of  the  other  company,  going  in  the  opposite  direction, 
is  due;  and  the  one  so  running  its  train  out  of  time  is 
liable  for  an  injury  to  one  of  its  passengers  sustained 
in  a  collision  between  the  two  trains.'      A  railroad 
company  which  runs  its  line  by  telegraph  Is  bound  to 
have  a  suitable  telegraph  line,  with  a  proper  number 
of  operators;   and  in  case  of  an  accident  it  is  for  the. 
jury  to  decide  whether  its  duty  in  this  respect  was  per- 
formed."     AYhere  a  train  separates  while  going  up  a 
steep  grade,  and  the  rear  portion,  running  down  grade,, 
collides  with  another  train,  the  jury  is  warranted  in 
finding  the  company  negligent  in  permitting  the  two 

S  88.     1  Chioaso.  B.  &  Q.  K.  ("o.  v.  CJcortrc  1!»  111.  filO. 
I  Grand  Trunk  Ilv.  Co.  v.  Walker,  154  U.  S.  053,  14  Sup.  Ct.  1189. 
V.  iKKT.CAU..'xs.-i:  (200\ 


§    88  CARRIERS   OF   PASSENGERS.  (Ch.    5 

trains  to  niii  only  eight  minutes  apart.^  Where  rail- 
road men,  runniuo-  a  locomotive  and  snow  plow,  know 
that  a  train  is  stalled  on  the  track  somewhere  in  the 
vicinity,  the  jury  is  warranted  in  finding-  them  guilty 
of  negligence  in  running  into  the  stalled  train,  without 
slacking  speed.*  A  terminal  railway  is  guilty  of  neg- 
ligence in  running  trains  through  its  Aards  without 
leaking  any  precaution  against  collision  at  a  curve,  ex- 
cept ringing  bells  and  sounding  whistles,  since  the 
adoption  of  a  system  of  flagging  would  give  almost  ab- 
solute security  against  collisions  with  other  trains.'^ 
The  servants  of  a  railroad  corporation  in  charge  of  a 
mixed  freight  and  passenger  train  are  guilty  of  gross 
negligence  in  leaving  the  passenger  car  on  the  main 
track  at  a  station,  without  using  proper  care  to  flag 
an  approaching  freight  train  in  time  to  avoid  colli- 
sion.^ The  failure  of  the  foreman  of  switch  engineers 
to  notify  an  engineer  of  the  expected  arrival  of  an  ex- 
cursion train,  of  which  fact  the  foreman  had  been  no- 
tified by  the  station  master,  is  negligence,  which  will 
render  the  company  liable  for  the  death  of  a  passenger 
caused  by  -a  collision  between  the  switch  engine  and 
the  train.'  Where  a  freight  train  breaks  into  sev- 
eral i)arts  in  the  nighttime,  and  two  of  the  sections, 
without  brakemeu,  run  backward,  down  grade,  into 

3  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Faylor,  12G  lad.  126,  2.5  N.  E. 

8(;;». 

4  Annas  v.  Railroad  Co.,  G7  Wis.  4G,  30  N.  W.  282. 

5  Cnion  Railway  &  Transit  Co.  v.  Shacklet,  119  111.  232.  10  N.  E. 
S[H>:    Id.,  19  111.  App.  145. 

c  Louisville  &  N.  R.  Co.  v.  Long,  94  Ky.  410.  22  S.  W.  747. 
1  Eddy  v.  Letcher,  6  C.  C.  A.  27G,  57  Fed.  115. 
(210) 


Ch.  5)     DUTY  OF  CAKE  DUR.NG  TRANSPORTATION.       §  89 

the  caboose,  which  is  stationary,  it  is  a  question  for 
the  jury  whether  the  absence  of  brakemen  from  the  de- 
tached sections  is  neglioence;  one  of  the  brakemen  be- 
ino  in  the  caboose,  and  the  other  in  the  engine,  in  vio- 
hition  of  the  company's  rules.^ 

But  where  the  chain  brake  of  a  street  car  breaks 
while  the  car  is  on  a  down  grade,  and  the  car  collides 
with  another  ahead,  the  driver,  who  remains  at  his 
post  until  his  car  is  within  four  feet  of  the  one  in  front, 
and  who  does  everything  possible  to  prevent  the  acci- 
dent, is  not  chargeable  with  negligence,  because  in 
handling  the  brake  he  used  more  force  than  was  abso- 
lutely necessary,  or  because  he  failed  to  shout  to  the 
driver  of  the  forward  car,  at  least  in  the  absence  of 
evidence  that  this  would  have  been  of  service  in  pre- 
venting the  collision." 

§  89.     SAME  — BETWEEN  TRAINS  AT  GRADE  CROSS- 
INGS. 

Trainmen  know,  and  are  bound  to  know,  that  all 
points  where  railway  lines  cross  at  grade  are  places  of 
danger,  and  they  must,  in  the  handling  of  trains  in- 
trusted to  them,  exercise  the  care  which  the  presence 
of  this  known  danger  demands  of  them.  It  is  negli- 
gence of  the  grossest  kind  to  attempt  to  make  a  cross- 
ing without  taking  pains  to  see  whether  there  is  an- 
other train  at  or  near  the  crossing,  and  without  riMlu- 
cing  the  speed  sufficiently  to  place  the  train  under  the 

»  Delaware,  L.  &  W.  R.  Co.  v.  Ashley.  14  C.  C.  A.  3G8.  G7  Fed.  209. 
0  AVynn  v.  Railroad  (^o.,  133  N.  Y.  5T.-i,  30  N.  E.  721,  roversiii};  (Com. 

I'l.)  14  N.  Y.  Supp.  172. 

(211) 


§    89  CARRIERS   OP  PASSENGERS.  (Ch.    5 

reasonable  control  of  the  engineer;  for,  unless  these  pre- 
cantions  are  taken,  a  collision  is  inevitable,  if  another 
train  happens  to  be  upon  the  crossing,  even  rightfully, 
when  the  other  reaches  it.  As  aids  in  securing  the  ex- 
ercise of  proper  care  on  the  part  of  trainmen,  the  com- 
panies place,  at  proper  points,  stopping  posts  upon 
their  roads,  and  adopt  the  rule  requiring  all  trains  to 
be  halted  thereat.  The  mere  act  of  stopping  the  train, 
however,  is  not  the  purpose  of  the  rule.  That  is  mere- 
ly a  means  to  an  end.  The  ultimate  purpose  of  the 
rule  is  twofold,  and  coincides  with  the  requirement  of 
the  general  rule  of  law  upon  the  subject,  to  wit,  to  se- 
cure opportunit}^  to  those  in  charge  of  the  train  to  as- 
certain whether  there  is  another  train  approaching  the 
crossing,  and  to  place  the  engineer  in  complete  con- 
trol of  the  train.^      Further  than  this,  it  is  the  duty, 

§  89.  1  Kansas  Citj%  Ft.  S.  &  M.  R.  Co.  v.  Stouer.  2  C.  C.  A.  437. 
51  Fed.  S49;  s.  c.  49  Fed.  209.  In  this  case  it  was  held  that  the 
mere  fact  that  the  train  was  halted  near  the  stopping  post,  but  at 
a  point  where  the  view  of  the  crossing  was  obstructed,  does  not 
exonerate  the  train  hands  from  negligence,  if  they  kept  no  proper 
lookout  for  trains  on  the  intersecting  road  approaching  the  cross- 
ing, and  ran  the  train  at  such  a  rate  of  speed  as  to  make  it  im- 
possible for  the  engineer  to  check  its  movement  on  discovering  an- 
other train  on  the  crossing.  In  Grand  Rapids  &,  I.  R.  Co.  v.  Ellison. 
117  Ind.  234,  20  N.  E.  135,  it  was  held  that  to  stop  an  engine  700 
feet  from  a  railroad  crossing,  where  the  view  of  the  intersecting 
railroad  is  obstructed,  and  then  to  go  over  the  crossing,  is  not  a 
comi)liance  with  Rev.  St.  Ind.  1881,  §  2172  (Rev.  St.  Ind.  1894.  § 
2293),  requiring  engines  to  be  brought  to  a  full  stop  at  a  point  near 
the  crossing,  and  requiring  the  engineer  to  ascertain  whether  there 
is  a  train  in  sight  or  approaching  on  the  other  railroad:  and  hence 
the  company  is  liable  for  injuries  sustained  in  a  collision  with  a 
train  on  the  intersecting  road.  The  duty  to  stop  at  crossings  with 
intt'i-socting  railroads  is  quite  generally  imposed  by  statute.  See 
(212) 


Ch.  5)     DUTY  OF  CARE  DURING  TRANSPORTATION.       §  89 

not  only  of  the  engineer,  bnt  of  the  fireman,  when  the 
train  is  in  motion,  and  especially  when  nearing  a  cross- 
ing with  an  intersecting  railroad,  to  be  at  his  post  and 
on  the  lookout;  and,  if  a  collision  occurs  with  a  train 
which  the  fireman  could  have  discovered  had  he  been 
at  his  post,  the  company  is  liable.^ 

A  carrier  is  liable  for  an  injury  to  a  passenger  sus- 
tained in  a  collision  with  a  train  of  another  railroad  at 
an  intersecting  crossing,  if  the  carrier  could  have 
avoided  the  collision  by  the  exercise  of  that  degree  of 
care  which  it  owed  its  passengers,  though  the  employes 
of  the  other  railroad  may  have  been  more  grossly  neg- 
ligent than  its  own  employes.^ 

Mere  considerations  of  convenience  in  handling  bag- 
gage and  express  matter  do  not  justify  a  railroad  com- 
pany in  permitting  a  passenger  coach  to  stand  on  a 
crossing  with  another  road;  and  the  carrier  is  liable 
for  the  death  of  a  passenger  killed  in  a  collision  with 
detached  freight  cars,  which  ran  down  the  descending- 
grade  of  the  other  road,  and  struck  the  passenger  car, 
where  the  carrier  took  no  precaution  whatever  to  pre- 
vent such  an  accident.*  But  trainmen  of  one  road, 
who  have  complied  with  the  statute  on  approaching  a 
crossing  with  an  intersecting  road,  have  a  right  to  as- 
sume that  trainmen  on  the  other  road  will  also  comply 

Rev.  St.  Me.  1883.  c.  51,  §  76;    3  How.  Anu.  St.  Mich.  S  3370;    Code 
Tenn.  1884.  §  13(>1. 

2  Grand  Kapids  &  I.  H.  Co.  v.  Ellison.  117  Ind.  234,  20  N.  E.  135. 

8  Chicago.  K.  &  W.  K.  Co.  v.  Ransom.  56  Kan.  559.  44  Pac.  7. 

4  K.'ilcjw  V.  Railroad  Co.,  68  Iowa,  4'iU,  23  N.  W.  74(i,  and  27  N.  W. 

466. 

(213) 


§    90  CARRIERS  OF  PASSENGERS.  (Ch.   5 

with  it,  in  the  absence  of  any  indication  that  they  can- 
not or  will  not.' 


g  90.     SAME— STREET-RAILWAY  CROSSINGS. 

It  should  be  noted  at  the  outset  that,  where  a  street 
railroad  crosses  a  steam  railroad  at  grade,  the  duty  of 
the  employes  of  the  steam  railroad  towards  passengers 
on  the  street  railroad  is  the  exercise  of  ordinary  care, 
while  that  of  the  street  railroad  is  the  highest  order  of 
care.^  It  has  accordingly  been  held  that  the  driver  of 
a  street  car,  on  approaching  a  crossing  with  another 
railroad,  has  no  right,  at  the  peril  of  the  persons  and 
lives  of  the  passengers,  to  hazard  the  experiment  of 
crossing  the  intervening  track  in  the  face  of  an  ap- 
proaching train.^  So,  while  a  street  railroad  is  not 
bound,  as  matter  of  law,  to  keep  a  watchman  at  its  in- 
tersection with  a  steam  railroad,  in  the  absence  of  a 
statute  or  ordinance  requiring  it  so  to  do,  it  is  a  ques- 
tion of  fact  for  the  jury  whether  the  absence  of  a 
watchman  at  such  a  crossing  is  negligence.^  And 
where  the  safety  of  the  passengers  of  a  street  car  at  a 
railroad  crossing  depends  on  the  street-car  employes' 
going  on  the  railroad  track  to  see  whether  trains  are 
approaching,  it  is  negligence  for  them  to  omit  so  to 
do.*     Where  a  street-car  track  is  intersected  at  a  cross- 

5  Richmond  &  D.   R.   Co.   v.   Greenwood,  99  Ala.  501,   14  South. 
495. 

§  90.    1  Philadelphia  &  R.  R.  Co.  v.  Boyer,  97  Pa.  St.  91. 

2  Barret  v.  Railroad  Co.,  45  N.  Y.  628,  affirming  1  Sweeney.  568. 

8  .Tacquin  v.  Cable  Co.,  57  Mo.  App.  320. 

4  West  Chicago  St.  R.  Co.  v.  Martin,  47  111.  App.  610,  affirmed  in 
154  111.  523,  39  N.  E.  140. 
(214) 


Ch.   5)  DUTY    OF    CARE    DURING    TRANSPORTATION.  §    00 

iiio-  bv  several  railroad  tracks,  and  a  street  car  is 
struck  by  an  engine  on  the  second  track,  it  is  for  the 
jury  to  say  whether  the  conductor,  who  had  crossed  the 
first  track  in  advance  of  the  car,  was  ouilty  of  nejili- 
o-ence  in  not  crossino-  ahead  on  the  second  track  also.' 
Suppose,  however,  that  a  flapnan  is  stationed  at  the 
crossing-  by  the  steam-railroad  company,  is  the  driver 
of  the  street  car  justified  in  relying  on  the  flagman? 
In  a  Pennsylvania  case,  it  is  held  that  the  driver  of 
the  street  car  is  not  justified  in  attempting  to  cross  the 
track,  without   stopping,   looking,   and   listening,   no 
matter  what  the  action  of  the  flagman  stationed  at  the 
crossing  bv  the  steam  railroad  may  be,  if  the  driver 
has  information  Avhich  would  lead  a  prudent  man  to 
infer  that  there  is  danger  to  be  apprehended  from  an 
approaching  train.'      The  supreme  court  of  Ohio  has 
likewise  held  that  the  fact  that  a  railroad  company 
employs  a  gateman  at  a  crossing  with  the  tracks  of  a 
street-railway  company  does  not  excuse  the  failure  of 
the  employes  on  a  street  car  from  going  ahead  of  the 
car,  to  ascertain  whether  the  crossing  is  clear,  as  re- 
quired by  statute.'      Even  the  fact  that  a  cable  car  is 
signaled  to  go  forward  by  the  flagman  at  an  intersection 
with  an  electric  line  does  not  relieve  the  gripman  from 
negligence,  if  he  could  see  an  electric  car  approaching 
the  crossing  in  such  a  manner  as  to  render  a  collision 
imminent  if  he  proceeded.^     Negligence  of  a  railroad 

0  Douglass  V.  Railway  Co.,  91  Iowa,  94.  58  N.  W.  1070. 
6  Philadelphia  &  R.  R.  Co.  v.  Boyor.  1)7  Pa.  St.  91. 
T  Cincinnati  St.  Ry.  Co.  v.  Murray,  53  Ohio  St.  570,  42  N.  E.  590, 
aft;:ininK  9  Ohio  Cir.  Ct.  291. 

8  Taylor  v.  Railway  Co.  (Mo.  iiui>.)  ^9  S.  W.  88. 

(215) 


§    90  CARRIERS   OF  PASSENGERS.  (.Ch.    5 

gatekeeper  in  lowering  tlie  gates  so  as  to  pen  a  horse 
car  on  the  tracks  does  not  affect  the  liability  of  a  street- 
railroad  company  to  one  of  its  passengers  for  its  driv- 
er's negligence  in  going  upon  the  track  in  front  of  an 
ai)proaching  train.®  The  negligent  conduct  of  a  steam 
railway  in  failing  to  give  the  statutory  signals  on 
approaching  a  crossing  with  a  street  railroad  does  not 
excuse  the  negligence  of  the  street  railroad  in  running 
its  car  in  the  way  of  the  locomotive.^"  The  fact  that  a 
street-car  company  violated  a  contract  with  a  railroad 
company  in  failing  to  stop  a  car  at  a  crossing  with  the 
railroad  company,  and  in  not  sending  forward  the  con- 
ductor, to  see  if  the  track  was  clear,  is  no  defense  to 
the  railroad  company  in  an  action  by  a  passenger  on 
the  street  car  who  w^as  injured  in  a  collision  with  a 
train,  the  employes  on  which  were  also  negligent.^' 
The  federal  circuit  court  in  Ohio  has,  however,  held 
that,  when  a  gate  established  by  a  railroad  company 
at  a  street  crossing  is  open,  a  street-car  driver  may  as- 
sume that  the  track  is  clear  and  safe,  and  is  not  negli- 
gent in  passing  through  the  gate,  without  stopping  to 
look  or  listen  for  a  train.^'' 

In  case  of  collision  between  street  cars  at  intersect- 
ing crossings,  it  is  a  fair  question  for  the  jury  to  de- 
termine whether  the  driver  of  one  of  the  cars  is  guilty 
of  negligence  in  approaching  the  crossing  at  a  rate  of 

9  Washington  &  G.  R.  Co.  v.  Hickey.  17  Sup.  Ct.  GGl,  affirming 
5  App.  D.  C.  4(38. 

10  Hammond,  W.  &  E.  C.  E.  Ry.  Co.  v.  Spyzehalski  (lud.  App.) 
4G  N.  B.  47. 

11  Baltimore  &  O.  R.  Co.  v.  Friel,  23  C.  C.  A.  77,  77  Fed.  126. 

12  Whelan  v.  Railroad  Co..  38  Fed.  15. 
(210) 


{Jh.   0)  DUTY  OF  CARE  DURING  TRANSPORTATION.       §  91 

speed  which  would  not  enable  him  to  stop  his  car  al- 
most instantly  upon  discovering  another  car  approach- 
ing- on  the  intersecting  track.  And  if  he  do  approach 
at  such  a  slackened  rate  of  speed,  it  would  also  be  a 
question  for  the  jury  whether  he  was  not  guilty  of  neg- 
ligent conduct  in  attempting  the  experiment  of  cross- 
ing in  front  of  the  other  car,  when  to  remain  where  he 
was,  and  await  its  crossing,  would  have  resulted  in  ab- 
solute safety.''  And  a  collision  between  two  street- 
railway  cars  on  an  intersecting  crossing  is  evidence  of 
negligence,  where  the  driver  or  gripman  of  either  car 
could  have  seen  the  approach  of  the  other  in  time  to 
avoid  a  collision  by  stopping  his  own  car.^*  So  the 
failure  of  a  street-railroad  company  to  provide  means 
for  informing  the  operatives  of  a  car  passing  over  a 
switch  where  two  tracks  unite  whether  another  car, 
which  should  have  passed  that  point  a  few  minutes 
earlier,  from  the  opposite  direction,  had  done  so,  is 
negligence.^^ 

§  91.     SAME— BETWEEN  STREET  CAR  AND  VEHICLE. 

As  to  its  passengers,  a  street-car  company  is  bound 
to  exercise  the  highest  practicable  degree  of  care  to 
avoid  collision  with  vehicles  in  the  street,  while  as  to 
persons  in  the  vehicles  it  is  bound  to  exercise  only  ordi- 
nary care.  It  may  therefore  happen  that  a  passenger 
injured  in  a  collision  with  a  vehicle  may  recover  under 

18  Schneider  v.  Railroad  Co.,  133  N.  Y.  583,  30  N.  E.  752,  afHi-miug 
15  N.  Y.  Supp.  557. 

14  Kuttner  v.  liailwny  Co.,  29  Mo.  App.  ."»02. 

15  Bailey  v.  Trattiou  Co.  (Wash.)  47  I'ac.  241. 

(217) 


§    91  CARRIERS   OF   PASSENGERS.  (Ch.    5 

circumstances  where  the  occnpants  in  the  vehicle  could 
not'  The  driver,  whether  of  horses  or  machinery, 
should  be  vigilant  in  observing  his  track,  and  prompt 
in  the  exercise  of  every  reasonable  precaution  to  guard 
against  danger. ^^  Thus,  where  a  motorman  operating 
an  electric  car  sees  that  the  driver  of  a  wagon  on  the 
track  in  front  of  him  neither  looks  back,  nor  pays  any 
attention  to  the  ringing  of  the  bell,  nor  increases  his 
rate  of  speed,  nor  attempts  to  leave  the  track,  it  is 
his  duty  to  bring  his  car  under  control,  and  even  to 
stop,  if  necessar^^,  to  avoid  a  collision.  His  failure  to 
do  so  is  negligence,  which  will  render  tJie  company  lia- 
ble for  injuries  to  a  passenger  sustained  in  the  colli- 
sion.^ So  the  question  whether  a  gripman  on  a  cable 
car  is  guilty  of  negligence  in  going  ahead  at  full  speed 
when  he  observes  a  balky  team  near  the  track,  instead 
of  stopping  his  car,  and  waiting  until  the  team  can  be 
removed,  is  for  the  jury.^ 

A  street-car  company  is  liable  for  injuries  to  a  pas 
senger  on  a  car  who  was  struck,  in  a  very  narrow 
street,  by  the  shaft  of  a  wagon,  where  it  ajjpears  that 
the  two  vehicles  had  stopped  in  plain  view  of  each 
other,  and  that  the  collision  could  not  have  occurred 

§  91.    1  Sears  v.  Railvray  Co.,  6  Wash.  227,  33  Pac.  389.  1081;    Mt. 
Adams  He  E.  F,  I.  Ry.  Co.  v.  Lowery.  20  C.  C.  A.  596,  74  Fed.  4G3. 

2  Mt.  Adams  &  E.  P.  I.  Ry.  Co.  v,  Lowery,  20  C.  C.  A.  590,  74 
Fed.  403. 

3  Sears  v.  Railway  Co.,  6  Wash.  227,  33  Fae.  389,  1081. 

*  Cook  V.  Railroad  Co..  00  Cal.  604.  Where  a  driver  of  a  street  car 
keeps  on  when  he  sees  that  a  horse  attached  to  a  truck  in  front 
has  become  ungovernable,  and  a  passenger  is  injured  in  a  collision 
with  the  truck,  the  question  of  the  driver's  negligence  is  for  the 
jury.  Seidiinger  v.  Railroad  Co..  28  Hun,  505. 
(218) 


Ch.  5)  DUTY    OF    CARE    DUUING    TRANSPORTATION.  §    91 

had  the  car  stood  still  for  a  very  short  time,  and  per- 
mitted the  wagon,  which  was  tirst  in  motion,  to  get  by.' 
Where  a  street  car  is  driven  so  rapidly  that  the  driver 
cannot  avoid  collision  with  a  van  rrossing  the  track 
at  midday,  with  no  other  obstruction  in  the  street,  the 
company  is  liable  for  injuries  to  a  passenger  in  the 
collision.®  Where  a  street-car  driver  urges  his  horses 
to  a  faster  movement  as  a  wagon  on  the  track  ahead,, 
loaded  with  lumber,  is  turning  out,  causing  the  for- 
ward part  of  the  car  to  come  in  contact  with  the  pro- 
jecting boards  on  the  wagon  with  sufficient  force  to 
break  the  window  and  stanchion  of  the  car,  and  to 
strike  a  passenger  in  the  car,  a  jury  is  wai'ranted  in 
finding  the  driver  negligent.^ 

It  has  even  been  held  that  a  driver  of  a  street  car, 
who  knows  that  passengers  are  riding  on  the  running- 
board,  and  who  sees  a  truck  in  close  proximity  to  the 
track,  is  bound  to  consider  the  possibility  of  a  slight 
movement  of  the  truck;  and  it  is  negligence  for  him  to 
proceed  at  full  speed,  if  the  position  of  the  truck  is 
such  as  to  apprise  the  motorman  of  the  liability  of  a 
collision,  even  though  it  may  be  occasioned  by  a  slight 
movement  of  the  truck. ^  But  the  driver  of  a  street 
car  is  not  bound  to  be  on  the  lookout  for  runaway' 

5  Devlin  v.  Railroad  Co.,  57  Hun,  ")!)!.  10  N.  Y.  Supp.  848.  A  ver- 
dict for  a  passenger  is  sustained  by  evidence  that  the  driver  of  the 
car  drove  against  a  wagon  standing  across  the  track,  and  tliat  tlie 
collision  throw  plaintiff  to  the  street,  and  injured  him.  Fox  v.  Rail- 
road Co.,  7  Misc.  Rep.  2H5,  27  N.  Y.  Supp.  895. 

6  Franklin  v.  Railroad  Co.,  50  Hun,  605,  3  N.  Y.  Supp.  lili!).  af- 
firmed in  121  N.  Y.  673,  24  N.  E.  1095. 

7  O'Malley  v.  Railway  Co.,  3  App.  Div.  2.59,  38  N.  Y.  Supp.  456. 

8  Wood  V.  Railroad  Co.,  5  App.  Div,  492,  38  N.  Y.  Supp.  1077. 

(219) 


§    91  CARRIERS   OF  PASSENGERS.  (Ch.    5 

horses,  and  is  not  cliargeable  with  negligence  in  failing 
to  avoid  a  runaway  horse,  which  was  in  sight  only  a 
short  time  before  it  ran  into  the  car;  the  driver's  at- 
tention being  devoted  to  passengers  getting  on  and  off 
the  car.^ 

When  the  car  approaches  a  street  crossing,  it  is  the 
driver's  duty  to  be  on  the  lookout  for  approaching  vehi- 
cles on  the  intersecting  street,  and  the  company  is  lia- 
ble for  injuries  to  a  passenger  in  a  collision  which 
could  have  been  avoided  if  the  driver  had  been  on  the 
lookout/**  And  the  rule  giving  to  the  cars  of  a  street- 
railway  corporation  the  preference  and  a  superior 
right  of  way  in  the  street  where  its  tracks  are  laid  does 
not  apply  at  street  crossings.  At  such  crossings,  the 
cars  have  no  right  superior  to  those  of  vehicles  moving 
in  the  streets  crossed.^^ 

»  Hamilton  v.  Railway  Co.,  163  Mass.  199,  39  N.  E.  1010.  But 
Where  a  team  approaches  a  street  ear  at  a  crossing  at  such  a  rate 
of  speed  as  to  show  that  it  is  not  under  control,  or  that  no  reli- 
ance can  be  placed  on  the  discretion  of  the  driver,  the  question 
whether  it  was  negligent  in  the  driver  to  pass  ahead  of  the  team 
is  a  question  for  the  jury.     Watkins  v.  Railroad  Co.,  20  Hun,  237. 

10  Heucke  v.  Railway  Co.,  69  Wis.  401.  34  N.  W.  243. 

11  O'Neil  v.  Railroad  Co.,  129  N.  Y.  125,  29  N.  E.  84.  affirming  15 
N.  Y.  Supp.  84.  It  is  a  question  for  the  jury  whether  the  driver  of 
a  horse  car  is  negligent  in  driving  rapidly  on  a  descending  grade, 
when  he  could  have  seen  horses  on  a  trot  60  or  70  feet  away,  draw- 
ing a  heavy  beer  wagon,  headed  towards  the  track  at  right  angles, 
and  when  he  failed  to  check  the  rapid  movement  of  the  car  until 
the  collision  took  place.  Hurley  v.  Brewing  Co.,  13  App.  Div.  167, 
43  N.  Y.  Supp.  259. 

(220) 


Ch.   0>  DUTY    OF    CARE    DURING    TRANSPORTATION.  §    92 

§  92.  OTHER  BREACHES  OF  CARRIER'S  DUTY  DUR- 
ING TRANSPORTATION. 

No  duty  rests  on  a  railroad  eompauy  to  inform  or 
warn  a  passenger  on  a  caboose  car  that  there  is  danger 
in  standing  near  the  open  side  door  of  the  ear  when  the 
train  is  starting  or  in  motion,  since  this  is  matter  of 
common  knowledge.^  Nor  is  it  the  duty  of  the  con- 
ductor of  an  elevated  car  to  notify  a  passenger,  about 
to  pass  from  one  car  to  another  as  the  train  is  start- 
ing, that  there  will  be  an  open  space  between  the  plat- 
forms of  the  two  cars  when  they  begin  to  move,  though 
they  are  in  contact  while  standing  still.'  But  a  con- 
ductor who  directs  a  woman  and  a  child  to  leave  the 
smoking  car  for  another  more  comfortable  for  them  is 
guilty  of  negligence  in  failing  to  furnish  them  assist- 
ance while  attempting  to  pass  from  car  to  car.^  In 
running  a  train  through  a  tunnel,  requiring  six  or 
seven  minutes,  the  failure  to  furnish  lights,  and  to  shut 
the  car  door,  allowing  smoke  and  cinders  to  enter  the 
car,  to  the  great  inconvenience  of  passengers,  is  suffi- 
cient evidence  of  negligence  to  take  the  case  to  the 
jury,  in  an  action  by  a  passenger,  w^ho  was  injured  in 
attempting  to  shut  the  door."  The  fact  that  the  em- 
ployes of  a  railroad  company  made  every  effort  to  no- 
tify those  in  charge  of  a  train  of  an  open  switch  does 
not  excuse  the  negligence  of  such  employiSs  in  leaving 

§  02.    1  Thompson  v.  Duncan,  76  Ala.  o34. 
2  Clune  V.  Railroad  Co.,  48  ilun,  618,  1  N.  V.  Supp.  239. 
8  Cleveland,  C,  C.  &  I.  R.  Co.  v.  Manson.  30  Ohio  St.  451. 
*  Western  Maiyland  K.  Co.  v.  Stanley,  61  Md.  LltJU. 

(L»L>1) 


X    92  CARRIERS  OF   PASSENGERS.  (Ch.   5 

the  switch  open  with  full  knowledge  of  the  approach 
of  the  train.'  So  it  is  for  the  jury,  and  not  the  court, 
to  determine  whether  it  is  negligence  in  a  railroad 
company  to  keep  locked  the  closet  in  a  passenger  coach, 
leaving  no  place  for  passengers  to  attend  to  calls  of 
nature,  and  to  stop  the  coach  in  the  nighttime  over  a 
cut  20  feet  deep,  with  all  its  servants  away  from  the 
coach,  and  without  notice  to  passengers  of  the  danger 
to  which  they  are  exposed  if  they  attempt  to  get 
out.'  Where  a  bell  rope  in  a  passenger  coach  fails  to 
work,  and  therefore  the  engineer  receives  no  signal 
to  stop  the  train  on  a  fire  breaking  out  in  the  car,  it  is 
a  question  for  the  jury  whether  the  company  has  com- 
plied with  a  statute  requiring  it  to  provide  the  best- 
known  appamtus  on  its  passenger  trains  for  immedi- 
ate communication  with  the  engineer,  and  whether 
the  failure  so  to  do  was  the  cause  of  an  injury  to  a 
passenger  who  was  burned  in  the  fire.^ 

A  street-railway  company  is  not  chargeable  with 
negligence  in  ijermitting  a  passenger  to  place  a  basket 
between  his  feet,  and  another  passenger  attempting  to 
pass  over  the  obstruction  assumes  the  risk  and  danger 
of  so  doing. ^  Where  a  street-car  driver,  attempting  to 
drive  some  trespassing  boys  from  the  car,  strikes  at 
them  with  a  stick,  and,  missing  his  aim,  hits  a  window, 

B  Louisville  &  N.  R.  Co.  v.  Kingman  (Ky.)  35  S.  W.  204. 

6  Wood  V.  Railroad  Co.,  84  Ga.  3(>J.  10  S.  E.  907. 

7  Hay  V.  Railroad  Co.,  37  U.  C.  Q.  B.  456.  St.  Vt.  1894,  §  3909,  re- 
quires all  passenger  trains  to  be  supplied  with  a  bell  rope,  connect- 
ing all  passenger  coaches  with  the  locomotive  hauling  the  train. 

8  Van  Winkle  v.  Railroad  Co.,  46  Hun,  504. 


Ch.  5)     DUTV  OF  CARE  DURING  TRANSPORTATION.        §  93 

and  injures  a  passenger,  the  company  is  liable  if  the 
driver  is  negligent.® 

§  93.     STATUTORY  PROVISIONS  AGAINST    FIRES 
AND  EXPLOSIVES  ON  TRAINS. 

In  many  of  the  states  statutes  exist  wliicli  prohibit 
the  illumination  of  passenger  cars  with  oil  which  will 
ignite  at  a  temperature  of  less  than  300  degrees  Fah- 
renheit' Still  others  require  the  heat  to  be  generated 
outside  and  independent  of  the  cars,^  or  compel  the  use 
of  heaters  in  the  cars  that  will  make  it  practically  im- 
possible for  fire  to  escape  therefrom.^  Still  others 
require  passenger  cars  to  be  furnished  with  tools,  such 
as  axes,  saws,  and  crowbars,  to  enable  passengers  to 
escape  from  wrecked  cars.*  And  in  a  few  the  trans- 
portation of  explosives  in  passenger  trains  is  prohib- 
ited.^ 

These  statutes  have  rarely  come  before  the  courts 
for  enforcement.  The  New  York  statute,  prohibiting 
the  heating  of  cars  by  any  stove  or  furnace  inside  of 

«>  Allen  V.  Railway  Co.,  79  Tex.  631,  15  S.  W.  498. 

§  93.  1  Ky.  St.  1894,  §  787;  Laws  N.  Y.  1882.  c.  292;  Rev.  St. 
Ohio  1890,  §  3353;  1  Rev.  St.  S.  C.  1893.  §  1(583:  Pub.  St.  R.  I.  p. 
407,  c.  158,  §  10;    Sanb.  &  B.  Ann.  St.  Wis.  §  1800. 

2  Laws  N.  Y.  1887,  c.  016. 

8  3  How.  Ann.  St.  Mich.  §  3434b:    Pub.  St.  N.  H.  1891,  p.  453.  §  13. 

4  1  How.  Ann.  St.  Mich.  §  34.33;  Laws  Minn.  1887.  e.  18.  §  2 
Laws  N.  Y.  1884,  c.  439,  §  8;    Saub.  &  B.  Aun.  St.  Wis.  §  1807. 

B  Sanb.  &  B.  Ann.  St.  Wis.  §  1805;  Rev.  St.  U.  S.  §§  42  rS,  4279 
5353,  5355.  The  locking  of  passenger  cars  while  the  train  is  in  mo 
tion  is  prohibited  in  some  states.  Hev.  St.  Fla.  §  2200;  Rev.  St 
Ind.  S  2298;    Code  W.  Va.  1891,  p.  898,  §  18;    Sanb.  &  B.  Ann.  St 

Wis.  §  1800. 

(223) 


§    94  CARRIERS   OF   PASSENGERS.  (Cll.    5' 

the  car,  has  been  held  valid  as  a  police  reoulation,  even 
as  to  roads  located  partly  without  the  state.®  It  has 
been  further  held  that  directors  of  the  company  oper- 
ating the  railroad  are  subject  to  the  penalty  imposed 
bv  the  statute,  if  thev  caused  the  car  to  be  heated  in 
the  prohibited  manner;  but  that  they  are  not  liable 
merely  because  they  are  directors  or  officers  of  the 
corporation,  and  it  must  be  shown  that  they  personally 
participated  in  the  offense.'^ 

It  has  also  been  held  that  the  prohibition  in  Rev.  St. 
U.  S.  §  5353,  against  transporting  nitroglycerine  on 
vehicles  engaged  in  interstate  passenger  traffic,  ex- 
tends to  dynamite,  which  is  made  by  mixing  nitrogly- 
cerine with  some  solid  and  inert  absorbent  substance, 
and  which  contains  no  other  explosiA-e  ingredient. 
And  a  freight  train  may  be  regarded  as  a  passenger 
train,  within  the  meaning  of  this  statute,  when  passen- 
gers are  conveyed  thereby  for  compensation,  in  any 
kind  of  cars,  by  authority  of  the  railway  corcipany.^ 

§  94.     STAGECOACHES. 

The  law  pertaining  to  carriage  of  passengers  by 
stagecoach  has  become  yearly  of  less  importance,  as 
the  stagecoach  has  been  supplanted  by  the  railroad. 
Mr.  Justice  Story,  in  his  work  on  Bailments,^  has  stat- 

6  People  V.  New  York,  N.  H.  &  H.  R.  Co.,  55  Ilun,  409.  008,  8  N. 
Y.  Supp.  672,  affirming  5  N,  Y.  Supp.  945.  affirmed  in  123  N.  Y. 
635,  25  N.  E.  953. 

7  People  V.  Clark   (O.  &  T.)  14  N.  Y.  Supp.  G42. 

8  U.  S.  V.  Saul,  58  Fed.  7(J3. 

§  94.    1  Story,  Bailm.  (4tli  Ed.)  §§  592-594,  598,  000-602. 

(224) 


Ch.   5)  DUTY    OF    CARE    DURING    TRANSPORTATION.  §    '.t4 

ed  the  law  on  this  subject  in  terms  of  chissic  eloquence, 
traceable  in  many  of  the  decisions  involving  railroad 
carriers.  Indeed,  it  is  not  too  much  to  say  that  the 
j)rinciples  announced  by  the  courts  in  the  first  few 
decades  of  the  present  century,  governing  the  liability 
of  carriers  by  stagecoach,  have  been  the  fruitful  germs 
of  our  present  voluminous  law  on  railroad  carriers. 
These  general  principles  have  already  been  note<l  in 
previous  portions  of  this  work.^  It  remains  only  to 
notice  a  few  of  the  decisions  peculiarly  applicable  to 
the  transportation  of.  passengers  by  stagecoach. 

A  coach  owner  is  bound  to  carry  the  passenger  from 
the  usual  place  of  taking  up  to  the  usual  place  of  set- 
ting down.  If  the  usual  phice  for  setting  down  pas- 
sengers is  the  inn  yard,  the  coach  owner  is  liable  for 
injuries  sustained  by  an  intended  passenger  from  com- 
ing in  contact  with  the  arch  in  the  gateway  of  the  inn.^ 
To  leave  the  common  truck,  and  take  one  not  used,*  or 
to  permit  a  passenger  to  drive,'  is  evidence  of  negli- 
gence on  the  part  of  the  driver.  Failure  to  light  a 
stagecoach  in  the  nighttime  is  evidence  of  negligence, 
in  an  action  for  injuries  caused  by  the  overturning  of 
the  coach  by  striking  a  rock  in  the  roadway.* 

2  Antp.  c.  1. 

3  Dudley  v.  Smith,  1  Camp.  167. 

*  McKiuney  v.  Nell,  1  MeI.ean,  540,  Fed.  Cas.  No.  S..sr,5. 

6  Guiin  V.  Dickson,  10  U.  C.  Q.  B.  461. 

«  Sanderson  v.  P^razier,  8  Colo.  79,  5  Pac.  632. 

V.  1  FET.CAR.PAS. 15  (225) 


^    95  CARRIERS   OF  PASSENGERS.  (Cll.   6 

CHAPTER  VI. 

DUTY  OF  CARE  IN  EMPLOYMENT  OF  SERVANTS. 
§  95.    Must  Fiirnisla  Careful  and  Competent  Employes. 

§  95.     MUST    FURNISH    CAREFUL   AND    COMPETENT 

EMPLOYES. 

The  carrier  must  exercise  the  highest  practicable 
degree  of  care  to  furnish  a  sufficient  number 
of  careful,  temperate,  and  competent  employes, 
to  the  end  that  the  passenger  may  prosecute 
his  journey  in  safety. 

A  carrier,  like  any  other  master,  is  liable  for  the 
torts  of  his  servants,  while  acting  within  the  scope  of 
their  employment,  without  regard  to  the  question 
whether  he  was  negligent  in  selecting  and  retaining 
rhem.^  Hence  the  liability  of  the  carrier  for  negli- 
gence in  selecting  and  retaining  employes  rarely  comes 
before  the  courts  for  adjudication. 

The  law,  however,  compels  stage-coach  proprietors 
to  furnish  prudent  and  skillful  drivers,  and  holds  them 
liable  for  any  injury  that  the  passenger  may  receive  on 
account  of  negligence  in  this  respect.^  So  it  is  the  car- 
rier's duty  to  supply  the  coach  with  a  driver  who  him- 
self knows  the  way;  and,  in  an  action  for  injuries  to 
the  passenger  from  the  overturning  of  the  coach,  it  is 
no  defense  that  the  driver,  the  night  being  dark,  suf- 

§  95.    1  See  post,  c.  25,  as  to  carrier's  liability  for  acts  of  servants. 
2  Schafer  v.  Gilmer,  13  Nev.  330. 
(220) 


Ch.  G)  DUTY  OF  CARE  IX  EMPLOYMKNT  OF  SERVANTS.  §    95 

ferecl  the  suggestion  of  the  passenger  to  lead  him  off 
the  i'oadwaA\^  And  if  a  regiUar  driver  substitutes 
one  of  the  passengers  in  his  place  dunng  the  trip,  the 
owners  will  be  liable  for  the  substitute's  neglect  or 
incompetency.* 

It  is  incumbent  on  railroad  companies  to  employ 
none  but  sober  men  on  their  roads;  and  it  is  no  justi- 
ticatiou  or  excuse  to  the  company  in  employing  an  in- 
temperate or  incompetent  man  in  a  business  involving- 
such  peril  to  life  and  limb  that  hands  w^ere  scarce. 
For  a  sufficiently  high  rate  of  compensation,  sober  and 
<;ompetent  men  are  alw^ays  to  be  had.^  So  a  depot 
company  has  no  more  right  to  knowingly  and  advised- 
ly employ,  or  allow  to  be  employed,  on  its  premises,  a 
dangerous  and  vicious  man,  than  it  would  have  to  keep 
and  harbor  a  dangerous  and  savage  beast  or  other  ani- 
mal. Hence  a  depot  company  is  responsible  for  an 
assault  committed  on  a  passenger  by  a  servant  of  a 
tenant  of  its  parcel  room,  w^here  the  servant  is  a  man 
of  vicious  propensities,  who  has  frequently,  during  the 
six  years  of  his  emi)loymeut  there,  attacked  and  beaten 
passengers,  of  all  of  which  the  depot  company  had  no- 
tice.® Knowledge  of  the  vicious  or  dangerous  propen- 
sity must,  however,  be  brought  home  to  the  carrier. 
This  is  illustrated  in  a  curious  case  decided  in  Kansas 
a  few  years  ago.^  A  passenger,  purchasing  a  ticket  at 
a  station,  contracted  from  the  agent  the  disease  of 

8  Anderson  v.  Scholey,  114  Ind.  553,  17  N.  E,  125. 

4  TuUer  v.  Talbot,  23  111.  357. 

6  rciinsylvania  R.  Co.  v.  Books,  57  Pa.  339. 

6  Dean  v.  Depot  Co.,  41  Minn.  300,  43  N.  W.  54. 

7  Long  V.  Kailroad  Co.,  48  Kan.  28,  28  Fac.  1)77. 

(227) 


§    95  CARRIERS   OF   PASSENGERS.  (Ch.   (> 

smallpox,  with  which  the  agent  was  afflicted.  It  was 
held  that  the  railroad  company  was  not  liable  for  the 
consequent  illness  of  the  passenger,  if  neither  it  nor 
any  of  its  superior  officers  had  any  knowledge  that  the 
agent  was  afflicted  with  tJie  disease.  "The  employ- 
ment knowingly  of  an  improper  person  to  come  in  con- 
tact with  the  public  would  be  gross  misconduct,  but 
if  the  master  or  railroad  company  is  faultless  in  regard 
to  employing  an  agent,  and  in  continuing  his  employ- 
ment, the  master  or  railroad  company  ought  to  be  ex- 
cused civilly  from  the  consequences  of  any  secret  dis- 
ease, or  like  infirmity,  of  the  agent,  in  the  absence  of 
all  knowledge  thereof.  Even  a  dog  which  has  mani- 
fested no  vicious  propensities  may  be  kept  by  its  owner 
without  being  tied  or  otherwise  secured;  but  if  the  ani- 
mal is  vicious,  and  the  owner  has  been  notified  of  the 
fact,  a  duty  is  then  imposed  on  him  to  keep  the  animal 
secure,  and  he  is  responsible  for  any  mischief  if  he  fails 
to  observe  this  duty.  The  scienter  must  be  estab- 
lished." 

Sometimes  it  has  been  sought  to  hold  a  carrier  liable 
for  its  failure  to  employ  a  sufficient  number  of  serv- 
ants. A  statute  in  Maine  requires  railroad  companies 
to  furnish  a  brakeman  for  every  two  cars  on  its  passen- 
ger trains.^  But  in  New  York  it  has  been  held  that 
the  failure  of  a  street-railroad  company  to  provide  a 
conductor,  in  addition  to  a  driver,  on  a  one-horse  cai*, 
is  not  negligence.® 

«  Rev,  St.  Me.  1883,  c.  51,  §  61.  p.  481. 
»  Lamline  v.  Kailroad  Co.,  14  Daly,  144. 
(228) 


Ch.   7 J  DUTY    AS    TO    ACTS    OF    THIRD    PERSONS.  §    96 

CHAPTER  VII. 

DUTY  TO  GUARD  AGAINST  ACTS  OF  THIRD   TEUSONS. 

§    9G.  Principle  Governing  Liability. 

97.  Assault  on  Passenger. 

98.  Same — Knowledge  of  Danger. 

99.  Same — By  Insane  Passengers. 

100.  Abusive  Language  and  Disorderly  Conduct. 

lUl.  Other  AYrongs  to  Passengers. 

lOli.  Crowds  at  Stations. 

103.  Interference  with  Passengers  Embarking  on  and  Alighting 

from  Trains. 

104.  Train  Wrecking. 

105.  Missiles  Thrown  from  Cars. 

§  96.     PRINCIPLE  GOVERNING  LIABILITY. 

A  common  carrier  is  bound  to  exercise  the  highest 
practicable  degree  of  care  to  guard  his  passen- 
gers against  the  assaults  and  all  other  wrong- 
ful acts  of  either  fellow  passengers  or  strangers. 

Carriers  of  passengers  are  not  insurers  of  the  entire 
immunity  of  their  passengers  from  the  misconduct  of 
fellow  passengers  or  of  strangers,  any  more  than  they 
are  insurers  of  the  absolute  safety  of  ])assengers  in 
other  respects.^  Nor  can  the  carrier  bo  hold  liable 
for  such  misconduct  on  tlio  priuciplo  of  respondeat 
su]»ei'ior,  as  in  the  case  of  the  misconduct  of  his  serv- 
ants."     But  although  the  doctrine  is  of  couii);n'ativ<'ly 

§  96.  1  Kinney  v.  Railroad  Co.  (Ky.)  :'.  I  S.  W.  1000;  Chicago  & 
A.  R.  Co.  V.  IMllsbury,  123  111.  9,  14  N.  E.  T2. 

2  I'ittsburgh,  Ft.  AV.  &  C.  Ry.  Co.  v.  Hinds.  -,:\  V;\.  SI.  512;  Mul- 
lan  V.  Railroad  Co.,  40  Minn.  474,  49  N.  A^'.  Iil9. 


§    96  CARRIERS   OF  PASSENGERS.  (Cll.   7 

recent  growth,  it  is  now  firmly  established  that  a  car- 
rier of  passengers  must  exercise  the  same  high  degree 
of  care  to  protect  fhem  from  the  wrongful  acts  of  their 
fellow  passengers,  or  of  strangers,  that  is  required  for 
the  prevention  of  casualties  in  the  management  and 
operation  of  its  trains,  namely,  the  utmost  care,  vigi 
lance,  and  precaution,  consistent  with  the  mode  of  con- 
reyance,  and  with  its  practical  operation.^  While  not 
required  to  furnish  a  police  force  sufficient  to  overcome 
all  force,  when  unexpectedly  and  suddenly  offered,  it 

3  A\iight  V.  Railroad  Co.,  4  Colo.  App.  102,  35  Pac.  196;  Flint  v. 
Transportatiou  Co.,  34  Conn.  554:  Id.,  6  Blatchf.  158.  Fed.  Cas.  No. 
4.873,  affirmed  13  ^yalI.  3;  Kinuej-  v.  Railroad  Co.  (Ky.)  34  S.  W. 
10(i(>;  Missouri,  K.  &  T.  Ry.  Co.  v.  Russell,  8  Tex,  Civ.  App.  578,  28 
S.  ^V.  1042;  Chicago  &  A.  R.  Co.  v.  IMllsbury,  123  111.  9,  14  N.  E. 
22;  Simmons  v.  Steamboat  Co.,  97  Mass.  3G1.  It  is  the  duty  of  a 
carrier  to  protect  its  passengers  from  violence  at  the  hands  of  a 
fellow  passenger,  when  it  can  be  done  by  proper  care.  Evans- 
ville  &  I.  R.  Co.  V.  Darting,  6  lud.  App.  375,  33  N.  E.  63U.  How- 
ever, in  Illinois  Cent.  R.  Co.  v.  Minor.  69  Miss.  710,  11  South.  401. 
it  is  held  that  reasonable  care  and  diligence,  under  all  the  circum- 
stances, is  all  that  is  required  of  the  carrier  in  this  respect,  and 
that  he  is  not  bound  to  exercise  great  vigilance  and  care  in  main- 
taining order,  and  guarding  i)assengers  against  violence.  So  in 
Morris  v.  Railroad  Co.,  106  N.  Y.  678,  13  N.  E.  455,  it  is  said:  "In 
guai'ding  passengers  from  injury  by  the  falling  of  articles  placed  in 
a  rack  over  a  seat  by  another  passenger,  a  carrier  of  passengers  is 
not  held  to  the  highest  care  which  human  vigilance  can  give.  That 
measiu'e  of  care  has  been  spoken  of  as  due  from  them  in  the  actual 
transportation  of  the  passenger,  and  in  regard  to  the  results  nat- 
ui-ally  to  be  apprehended  from  a  failure  to  furnish  safe  roadbeds, 
proper  machinery,  perfect  cars  or  coaches,  and  things  of  that 
nature.  But,  in  regard  to  a  danger  of  this  kind,  a  carrier  of  passen- 
gers is,  we  think,  held  to  a  less  strict  measure  of  vigilance.  Rea- 
sonable care,  to  be  measured  by  the  circumstances  surrounding  each 
case,  to  prevent  accidents  of  this,  nature,  is  all  that  is  required." 
(230) 


Ch.   7)  DUTY    AS    TO    ACTS    OF    THIRD    PERSONS.  §    96 

is  the  carrier's  duty  to  provide  ready  help,  sufficient  to 
protect  the  passenger  against  assaults  from  every 
quarter  which  might  reasonably  be  expected  to  occur, 
under  the  circumstances  of  the  case  and  the  condition 
of  the  parties;  *  and,  having  furnished  such  force,  the 
carrier  is  chargeable  with  their  neglect  in  failing  to 
protect  a  passenger  from  assaults  by  strangers.^  This 
strict  rule  of  duty  must,  however,  be  applied  in  view 
of  the  relation  which  the  carrier  sustains  to  all  the 
passengers,  and  the  circumstances  of  each  particular 
case  calling  for  its  exercise."  Knowledge  of  the  exist- 
ence of  the  danger,  or  of  facts  and  circumstances  from 
which  the  danger  may  be  reasonably  anticipated,  is 
necessary  to  fix  a  liability  upon  the  carrier  for  dam- 
ages sustained  in  consequence  of  failure  to  guard 
against  it/ 

*  Britton  v.  Railway  Co.,  88  N.  C.  536;    Batton  t.  Railroad  Co.. 
77  Ala.  591;    Flannery  v.  Railroad  Co.,  4  Mackey  (D.  C.l  111. 
B  Wright  V.  Railroad  Co.,  4  Colo.  App.  102,  35  Pac.  lUO. 

6  Miillan  V.  Railroad  Co.,  46  Minn.  474,  49  N.  W.  249. 

7  Wright  V.  Railroad  Co.,  4  Colo.  App.  102,  35  Pac.  196;  Sira  v. 
Railroad  Co.,  115  Mo.  128,  21  S.  W.  905;  Royston  v.  Railroad  Co.. 
67  Miss.  376,  7  South.  320.  A  conduc-tor  is  only  failed  to  act  upon 
improprieties  or  offenses  witnessed  by  or  made  known  to  him,  au<l 
the  company  can  only  be  charged  for  the  neglect  of  some  duty  aris- 
ing from  circumstances  of  wliicli  the  conductor  was  cognizant,  or 
of  which,  in  the  discharge  of  his  duties,  he  ought  to  have  been 
cognizant.  Putnam  v.  Railroad  Co.,  55  N.  Y.  108,  reversing  36  N. 
Y.  Super.  Ct.  195.  But  in  Springfield  Consol.  Ry.  Co.  v.  Flynn, 
55  111.  App.  600,  it  is  held  that  a  common  carrier  of  passengers  is 
not  liable  for  the  acts  of  one  passenger  against  another,  upon  the 
ground  alone  that  the  act  was  done  in  tlie  presence  of  an  agent  of 
the  carrier,  and  that  such  agent  knew  the  act  was  done. 

(231) 


^    97  CARRIERS   OF   PASSENGERS.  (Ch.  7 

g  97.     ASSAULT  ON  PASSENGER. 

The  duties  and  powers  of  the  couductor,  when  pas- 
sengers are  assaulted,  are  very  clearly  pointed  out  in 
one  of  the  earliest  cases  on  this  subject.'  The  con- 
ductor, it  is  said,  may  stop  the  train,  and  call  to  his  as- 
sistance the  engineer,  the  fireman,  all  the  brakemen, 
and  such  passengers  as  are  willing  to  lend  a  helping 
hand.  Until,  at  least,  he  has  put  forth  the  forces  at 
his  disposal,  no  conductor  has  a  right  to  abandon  the 
scene  of  conflict.  To  keep  his  train  in  motion,  and 
busy  himself  with  collecting  fares  in  forward  cars, 
while  a  general  fight  is  raging  in  the  rearmost  car, 
where  lady  passengers  have  been  placed,  is  to  fall  short 
of  his  duty.  Nor  does  his  exhortation  to  passengers 
to  throw  the  fighters  out  come  up  to  the  demands  of 
the  hour.  He  should  lead  the  way.  He  should  stop 
the  train,  and  hew  a  passage  through  the  intrusive 
mass  until  he  has  expelled  the  rioters,  or  demonstrat- 
ed, by  an  earnest  experiment,  that  the  undertaking  is 
impossible.  In  another  pioneer  case  on  this  subject, 
it  was  held  that  a  steamboat  company  which  permits 
drunken  and  disorderly  soldiers,  armed  with  loaded 
muskets,  to  occupy  the  space  where  passengers  come 
on  deck,  without  notifying  i^assengers  of  the  fact,  so 
that  they  may  avoid  the  danger,  or  w^hich  permits  such 
soldiers  to  conduct  themselves  in  a  disorderly  manner 
for  a  considerable  time,  without  any  effort  on  the  part 
of  officers  or  crew  to  suppress  the  disorder  or  protect 
the  passengers,  or  induce  the  military  officers  so  to  do, 

§  97.    1  Pittsburgh,  Ft.  W.  &  C.  Ry.  Co.  v.  Hinds,  53  Pa.  St.  512. 
(232) 


<"h.   7)  DUTY    AS    TO    ACTS    OF    THIRD    PERSONS.  §   97 

is  liable  to  a  passenger,  who  was  wounded  by  a  dis- 
1  harge  of  a  musket  during  a  scuffle  between  the  sol- 
diers.^ So  where  a  passenger  is  assaulted  by  four 
other  passengers  in  the  presence  of  the  conductor,  who 
tiees  from  the  scene  of  conflict  without  doing  anything 
to  quell  the  fight,  the  company  is  liable.^  A  railroad 
company  which  negligently  fails  in  its  duty  to  preserve 
<»rder,and  to  protect  a  peaceable  passenger  on  one  of  ils 
Trains  against  riotous  and  disorderly  fellow  passen- 
gers, is  liable  for  an  injury  to  such  passenger,  caused 
by  the  careless  discharge  of  a  pistol  in  the  hands  of 
one  of  the  turbulent  fellow  passengers.*  And  where 
a  station  house  is  located  in  a  desert  country,  sparsely 
settled,  with  habitations  few  and  far  between,  and  is 
thrown  open  to  the  general  public  both  before  and 
after  the  arrival  of  trains,  it  is  the  duty  of  the  ticket 
agent,  who  represents  the  company,  to  guard  a  person 

« 

2  Flint  V.  Transportation  Co.,  34  Conn.  554;  Id.,  G  Blatehf.  I.jS,  Fed. 
fas.  No.  4,873.  affirmed  in  13  Wall.  3.  In  this  case  it  was  further 
held  that  the  fact  that  the  steamboat  company  was  compelled  to 
carry  these  soldiers  by  military  authority  does  not  release  it  from 
liability  to  plaintiff,  whom  it  undertoolv  to  carry  voluntarily,  after 
the  detachment  of  soldiers  had  arrived,  without  notifying  him  of 
that  fact.  In  Pittsburg  &  C.  K.  Co.  v.  Pillow,  7G  I'a.  St.  510,  the 
facts  were  these:  During  the  course  of  a  fight  between  two  passen- 
gers on  a  train,  one  threw  a  bottle  at  the  oilier,  which  struck  an- 
orher  passenger,  not  participating  in  the  quarrel,  and  put  out  his  eye. 
It  was  shown  that  the  conductor,  though  in  the  car.  took  no  steps 
to  stop  the  fight.     The  comjiany  was  held  liable. 

8  New  Orleans,  St.  L.  &  C.  K.  Co.  v.  Burke,  53  Miss.  200. 

<  Illinois  Cent.  R.  Co.  v.  .Minor.  0!)  Miss.  710,  11  South.  401.  In 
this  case  the  court  expressed  some  dissatisfaction  wilh  (he  deci- 
t;ion  in  New  Orleans,  St.  L.  &  C.  R.  Co.  v.  Burke,  53  Miss.  200, 
fcnpra. 

(233) 


§    97  CARRIERS   OP  PASSENGERS.  (Ch.   7 

lawfully  at  such  station,  whether  as  a  passenger  or 
not,  against  unjustifiable  assaults  committed  in  his 
presence  by  another'  servant  of  the  company,  aided  by 
strangers;  and  for  the  ticket  agent's  failure  so  to  do 
the  company  is  liable/  But  to  render  a  railroad  com- 
pany liable  for  injuries  by  one  passenger  to  another,  it 
must  appear  that  the  company  was  negligent  in  fail- 
ing to  put  the  passenger  actually  doing  the  injury  off^ 
the  car;  and  it  is  not  sufficient  that  it  failed  to  put  ofT 
another  i3assenger  who  had  assaulted  the  one  doing 
the  injury."  Of  course,  the  company  is  liable  when- 
ever its  employes,  instead  of  preventing,  aid  and  abet 
other  passengers  in  committing  an  assault  on  a  fellow- 
passenger.  Thus,  a  railroad  company  is  liable  for  ex- 
cessive force  used  in  removing  a  passenger  from  the 
train  by  a  fellow  passenger,  aided  and  abetted  by  the- 
conductor.^ 

The  same  principles  are  applicable  to  assaults  on 
passengers  in  street  cars.  Thus,  where  a  passenger 
in  a  street  car  is  injured  in  a  fight  between  other  pas- 
sengers, it  is  for  the  jury  to  say  whether  the  company 
was  negligent  in  failing  to  provide  a  conductor,  or  in 
having  a  driver  who  made  no  attempt  to  stop  the  fight 
or  eject  the  fighters.^  So  the  introduction  of  a  mani- 
festly intoxicated,  quarrelsome,  and  indecently  attired 
man  into  a  street  car  by  the  employees  of  the  company 
is  an  act  of  negligence,  for  the  consequences  of  which 

6  Kiantz  V.  Railway  Co.,  12  Utah,  104,  41  Pac.  717. 

6  Louisville  &  N.  R.  Co.  v.  McEwau  (Ky.)  31  S.  W.  465. 

7  International  &  ii.  X.  Ry.  Co.  v.  Miller,  9  Tex.  Civ.  App.  104, 
28  S.  W.  233.     To  same  effect,  see  Murphy  v.  Railroad,  23  Fed.  637. 

8  Holly  V.  Railroad.  61  Ga.  215. 

(234) 


Ch.   7)  DUTY    AS    TO    ACTS    OF    THIRD    PERSONS.  §    98 

the  company  is  liable;  and  when  the  conductor  admits 
such  a  person  into  the  car,  in  response  to  a  statement 
by  the  driver  that  such  person  is  "too  full"  to  ride  on 
the  front  platform,  the  negligence  is  aggravated  and 
unjustifiable.  The  company  is  therefore  liable  for  an 
unprovoked  assault  on  a  passenger  by  such  person.' 

§  98.     SAME— KNOWLEDGE  OF  DANGER. 

It  has  heretofore  been  stated  that  knowle<lge  of  the 
passenger's  danger,  or  of  facts  and  circumstances  from 
which  that  danger  may  reasonably  be  inferred,  is  nec- 
essary to  fix  the  carrier's  liability  in  this  class  of 
cases.^  Thus,  a  passenger  on  a  train  who  is  assailed 
and  beaten  by  a  fellow  passenger,  while  the  conductor 
is  absent  attending  to  his  duties  in  another  part  of  the 
train,  not  knowing  of  the  assault,  or  that  it  was  threat- 
ened, cannot  recover  damages  of  the  railroad  com- 
ipanj.^  This  principle  is  illustrated  by  a  remarkable 
ease  which  happened  in  New  York.  An  intoxicated 
passenger  on  a  street  car  annoyed  and  insulted  a  fe- 
male passenger.  Her  male  escort  requested  the  con- 
ductor to  make  the  intoxicated  passenger  keep  quiet. 
The  conductor  did  so,  and  the  intoxicated  passenger 
then  used  threatening  language  towards  the  conduct- 
'  or,  but  in  so  low  a  tone  as  not  to  be  audible  to  the  con- 
ductor or  any  one  else,  except  a  person  sitting  at  his 
side.  He  then  went  out  of  the  car,  and  rode  the  bal- 
ance of  the  journey,  some  distance,  on  the  front  plat- 

9  Ileiulricks  v.  Railroad  Co.,  44  N.  Y.  Super.  Ct.  8. 

§  98.    1  Ante,  §  'JO. 

2  Koyston  v.  Railroad  Co.,  67  Miss.  37G,  7  South.  320. 

(235) 


§    98  CARRIERS  OF  PASSENGERS.  (Ch.   7 

form.  As  the  female  passenger  and  her  escort  left  the 
{Street  car  by  the  rear  platform,  the  intoxicated  passen- 
ger jumped  from  the  front  platform,  ran  around  to  the 
rear,  and  struck  the  escort  with  a  car  hook,  killing  him. 
It  was  held  that  the  street-car  company  was  not  liable 
for  the  homicide,  as  there  was  no  evidence  of  want  of 
proper  care  on  the  part  of  its  servants.'  In  a  still 
more  remarkable  case  in  Missouri  it  was  held  that  the 
mere  fact  that  a  male  passenger  offered  to  escort  plain- 
tiff, a  young  girl  16  or  17  years  old,  to  an  hotel  at  the 
station  Avhere  she  was  compelled  to  get  off,  and  where 
she  was  a  total  stranger,  is  not  sufficient  to  suggest  to 
the  conductor  an  assault  and  ravishment  of  plaintiff 
by  her  fellow  passenger;  and  the  company  is  not  re- 
sponsible for  his  act  in  decoying  plaintiff  to  a  saloon, 
instead  of  conducting  her  to  an  hotel,  as  he  had  prom- 
ised to  do,  and  there  committing  a  revolting  and  brutal 
rape  on  lier  person.*      A  railroad  company  is  not  liable 

3  Putnam  v.  Railroad  Co.,  .''.5  N.  Y.  108,  reversius  36  N.  Y.  Super. 
Ct.  195.  An  altercation  occurred,  in  presence  of  the  conductor,  be- 
tween the  only  two  pas.senseis  in  a  car.  One  called  the  other  a 
"liar,"  whereupon  a  very  animated  tiat'ut  encounter  ensued,  lasting 
a  few  seconds,  which  was  terminated  by  the  conductor,  who  sep- 
arated the  combatants.  There  was  tlien  no  appearance  of  further 
trouble,  but  a  few  minutes  later,  after  plaintiff  had  washed  the 
blood  off  his  face,  his  assailant,  while  passing  along  tlie  aisle  near 
him  and  the  conductor,  suddenly  turned,  and  struck  ])laiutiff  again, 
in  the  mouth.  The  conductor  interfered  promptly,  and  took  the  as- 
sailant into  the  baggage  car,  after  which  plaintiff  saw  him  no  more. 
Held,  that  the  action  was  properly  dismissed  by  the  court,  because, 
apart  from  the  fact  that  plaintiff  was  partly  responsible  for  the 
difficulty,  the  conductor  performed  his  duty,  and  ncglectea  no  rea- 
sonable precaution  in  the  premises.  Mullan  y.  Railway  Co.,  46 
Minn.  474,  49  N.  W.  249. 

*  Sira  V.  Railroad  Co.,  115  Mo.  128,  21  S.  W.  9IJ.J.  For  this  crime, 
(230) 


Ch.    7)  DUTY    AS    TO    ACTS    OK    THIKD   PERSONS.  §   98 

for  the  death  of  a  passenger  at  the  hands  of  a  train  rob- 
ber, in  the  absence  of  evidence  that  it  or  its  employes 
knew  of  the  impending  danger,  or  of  circumstances  to 
arouse  their  suspicions.  Cases  holding  that  the  com- 
pany is  bound  to  keep  watch  and  ward  over  sleeping 
passengers  apply  only  to  thefts  of  their  property,  and 
not  to  a  crime  so  horrid,  and  happily  so  rare,  as  that 
of  murder."  The  failure  of  a  railway  company  to  ex- 
pel from  its  train  an  intoxicated  passenger,  not  disor- 
derly or  boisterous,  will  not  render  it  liable  for  an 
injury  to  a  fellow  passenger  caused  by  the  stumbling 
of  the  intoxicated  passenger,  and  the  falling  of  his  pis- 
tol, which  was  discharged,  wounding  plaintiff.  No 
human  being  could  have  foreseen  what  happened,  or 
could  have  had  any  ground  uj^on  which  to  base  an  aij- 
ticipation  that  such  a  result  would  follow  the  presence 
of  the  intoxicated  passenger.® 

But  where  a  conductor  permits  a  white  passenger, 

the  male  passenjirer  was  convicted,  and  sentenced  to  35  years'  im- 
prisonment. State  V.  Dusenberry,  112  Mo.  277,  20  S.  W.  4G1.  In 
I-^Iton  V.  Kailroad  Co.,  G9  Iowa,  577,  29  N.  W.  618,  tlie  trial  court 
instructed  the  jury  that  furnishing  a  flat  car  for  the  transportation 
of  passengers  was  not  such  negligence  as  would  render  the  railroad 
company  liable  for  the  death  of  a  passenger,  who  was  willfully 
thrown  from  the  car  bj'  his  fellow  passengers,  where  the  railroad 
company  had  no  reason  to  anticipate  such  assault.  The  jury  found 
specially  that  the  company  had  no  reason  to  anticipate  the  assault, 
but  returned  a  general  verdict  for  plaintiff.  On  defendant's  appeal, 
it  was  held  that  the  instruction  must  be  taken  as  the  law  of  the 
case,  and  the  general  verdict  was  set  aside,  as  in  conflict  there- 
with. 

B  Connell's  p:x'rs  v.  Railway  Co.,  I).*?  Va.  44,  24  S.  E.  4G7. 

e  Galveston,  H.  &,  S.  A.  Uy.  Co.  v.  Townsend  (Tex.  Civ.  App.)  3G 
S.  W.  4S5. 


§    98  CARRIERS   OF  PASSENGERS.  (Ch.   7 

in  violation  of  statute,  to  enter  a  ear  set  apart  for  col- 
ored passengers,  or  permits  him  to  remain  after  seeing 
him  in  the  car,  the  company  is  responsible  for  his  con- 
duct while  there,  and  is  liable  in  damages  to  a  passen- 
ger in  such  coach  to  whom  he  uses  obscene  and  in- 
decent language,  or  whom  he  othervsdse  maltreats, 
though  the  conductor  was  not  present  at  the  occur- 
rence, and  had  no  reason  to  anticipate  that  the  in- 
truder would  create  trouble.  "If  a  contrary  rule  is 
applicable,  and  no  liability  exists  on  the  part  of  the 
corporation  to  the  passenger^  the  separate  coach  law 
becomes  a  dead  letter,  and  those  who  are  entitled  to  its 
protection  have  no  means  of  enforcing  its  provisions 
but  by  an  indictment,  where  a  penalty  may  be  adjudg- 
ed in  favor  of  the  state.  Where  there  is  a  neglect  of 
duty  for  which  a  penalty  is  imposed,  and  private  injury 
results  from  this  neglect,  a  cause  of  action  arises  in 
favor  of  the  person  injured."  ^ 

It  must,  however,  be  borne  in  mind,  that  when  facts 
and  circumstances  exist  from  which  danger  to  the  pas- 
senger may  reasonably  be  inferred,  the  duty  of  protec- 
tion against  that  danger  arises.  Thus,  where  a  rail- 
road company  engaged  in  transporting  nonunion  la- 
borers on  a  regular  passenger  train  has  reasonable 
grounds  to  believe  that  they  will  be  attacked  by  strik- 
ers, the  duty  rests  on  it  to  exercise  the  highest  degree 
of  care  and  diligence  to  carry  its  regular  passengers 
safely,  and  to  guard  them  against  any  and  all  damages 
that  may  arise  from  such  attack.  In  this  case  it  ap- 
peared that  repeated  assaults  had  been  made  by  strik- 

1  Quinn  v.  Railroad  Co.  (Ky.)  32  S.  W.  712. 
(238) 


€h.   7)  DUTY    AS    TO    ACTS    OF    THIRD    PERSONS.  §   98 

-ers  on  nonniiiou  laborers  while  being  transported  to 
flnd  from  their  work,  and  they  could  be  embarked  and 
discharged  at  their  place  of  work  only  by  the  aid  of  a 
powerful  police  force.      Assaults  had  been  made  on 
the  train  which  carried  them  as  far  as  two  miles  from 
the  place  of  embarkation.      One  evening  the  railroad 
<:onipany  used  a  regular  passenger  train  to  take  these 
laborers  away,  and  the  mob  at  the  place  of  embarka- 
tion was  more  dangerous  and  violent  than  usual.      A 
mile  and  a  half  further  on,  the  train  came  to  a  stop  at 
a  railroad  crossing.      A  detachment  of  strikers,  who 
had  secreted  themselves  there,  took  possession  of  the 
train,  and  began  a  furious  and  cruel  assault  on  the  non- 
union laborers.     During  the  melee,  a  pistol  was  dis- 
charged, and  plaintiff,  a  passenger  on  the  train,  but  not 
^i  laborer,  was  dangerously  wounded.      It  was  held 
that  the  railroad  company  was  guilty  of  negligence  in 
stopping  the  train  at  that  point,  though  it  had  the  legal 
right  to  do  so,  and  that  consequently  it  was  liable  for 
l)laintiff's  injuries.'      So  a  railroad  company  is  liable 

8  Chicago  &  A.  K.  Co.  v.  Pillsbury,  123  111.  9,  14  N.  E.  22.  It  woiikl 
seem,  however,  that  the  railroad  company  ought  not  to  have  been  held 
liable,  if  a  statutory  duty  to  stop  before  going  over  the  crossing  exist- 
ed. A  passenger,  on  entering  a  car  ready  to  receive  passengers,  was 
iissaulted  by  three  men,  and  discovered  that  his  pocketbook  was  miss- 
ing. He  then  called  loudly  for  help,  saying  he  was  being  robbed. 
His  assailants  then  apparently  commenced  searching  for  rne  pock- 
etbook, and  it  was  found,  and  returned  to  plaintiff.  He  again  called 
for  help,  the  altercation  was  renewed,  and  the  three  men  again 
assaulted  plaintiff,  inflicting  on  him  serious  and  permanent  injuries. 
Held,  that  whether  the  cries  for  help  were  loud  enough  to  oe  heard 
by  the  trainmen,  or  some  of  them,  if  they  Avere  in  their  proper 
places,  and  whether  it  was  tlie  duly  of  defendant  to  have  any  of 
its   employes  stationed    in    ilie   car    where   the   assault   was   made, 


§    99  CARRIERS   OF   PASSENGERS.  (Ch.   7 

for  insults,  assaults,  and  abuse  of  a  colored  passenger 
on  a  train  by  drunken  white  passengers,  where  the 
conductor  has  knowledge  of  the  facts,  and  refuses  to 
interfere.  A  colored  passenger  is  entitled  to  the  same 
protection  against  drunken  and  violent  men,  seeking  to 
molest,  outrage,  and  humiliate  him,  as  a  white  passen- 


ger.^ 


§  99.     SAME— BY  INSANE  PASSENGERS. 

If  the  safety  and  reasonable  comfort  of  the  other 
passengers  will  not  be  imperiled  thereby,  a  railroad 
company  may  carry  an  insane  person  to  the  end  of  his 
journey,  though  not  accompanied  by  attendants,  or  he 
may  be  removed  from  the  train  at  the  first  station 
where  he  may  be  properly  cared  for;  but,  whether  he 
be  earned  in  the  train  a  longer  or  a  shorter  distance, 
the  company  is  bound,  so  long  as  he  is  in  the  train,  to 
do  whatever,  in  the  way  of  restraint  or  isolation,  is 
reasonably  demanded  for  the  safety  and  comfort  of 
other  passengers.  If  the  carrier  knows  that  in  fact  a 
passenger  is  violently  insane,  and  may  at  any  moment 

were  questions  for  the  jury.     Wright  v.  Railroad  Co.,  4  Colo.  Apy. 
102,  35  Pac.  19G. 

9  Richmond  &  D.  R.  Co.  v.  Jefferson,  89  Ga.  554,  16  S.  E.  69.  A 
railroad  company  is  liable  for  the  expulsion,  by  her  fellow  passen- 
gers, of  a  colored  passenger  from  a  car  in  which  she  is  rightfully 
riding,  where  the  conductor  was  fully  aware  of  the  desire  for  her 
expulsion,  of  the  fact  that  ribald  songs  and  coarse  and  insulting  Ian 
guage  had  been  Indulged  in  for  the  purpose  of  vexing  her,  and 
where  he  took  no  steps  to  protect  her  when  notified  that  the  expul 
sion  was  in  progress,  or  to  restore  her  to  her  place  after  the  ex- 
pulsion had  been  accomplished.  Britton  v.  Railway  Co.,  88  X.  C, 
53G. 

(240) 


Ch.  7)  rn  1 Y  as  to  acts  of  thiud  persons.  §  99 

do  violence  to  others,  it  is  justitied,  aud  in  fact  it  may 
be  its  imperative  duty,  to  exercise  proper  restraint, 
although  at  the  time  he  may  be  quiet,  and  apparently 
harmless.^  Hence,  where  a  passenger  who  has  been 
drinking  heavily  shows  symptoms  of  delirium  tremens, 
and  labors  under  the  delusion  of  pursuit  by  enemies  on 
the  train,  who  would  rob  or  kill  or  harm  him  in  some 
wav,  and  in  childish  but  real  fear  appeals  to  the  con- 
ductor  for  protection,  it  is  the  duty  of  the  conductor, 
knowing  him  to  possess  a  pistol,  to  disarm  him ;  and  the 

§  99.    1  Meyer  v.   Kailroad  Co.,  4  C.  C.  A.  221,  54  Fed.  116.     In 
this  case  the  facts  were  as  follows:     A  railroad  company  trans- 
ported an  insane  man  in  irons,  and  accompanied  with  attendants. 
Three  weelis  later,   the  same  man,   nnaccompanied  by  attendants, 
took  passage  on  another  train,  in  charge  of  the  same  conductor  and 
train  hands,  who  recognized  him.    During  the  journey  he  had  a  dull, 
heavy,  and  sullen  look,  which  might  indicate  insanity,  and  he  ap- 
plied to  the  conductor  for  protection,  and  frefpiently  complained  to 
fellow  passengers  about  being  pursued  by  .Jews.    The  day  after  be- 
ginning the  journey,   he  shot  and  killed  a  fellow  passenger  on  a 
sleeping  car,  and  likewise  the  conductor.    Held  that,  if  the  railway 
company  at  any  time  became  chargeable  with   knowledge  of  the 
insane  passenger's  actual  condition,  then  it  would  be  charged  with 
the  duty  of  doing  whatever  a  high  degree  of  care  would  demand 
for  the  protection  of  the  other  passengers  on  the  train;    but,  if  the 
evidence  failed  to  show  that  the  company  had  become  chargeable  with 
such  knowledge,  no  ground  would  exist  for  holding  it  responsible. 
and  that  the  question  whether  it  had  such  knowledge  was  for  the 
jury.     On  a  subsequent  appeal  in  this  case,  it  was  held  that  evi- 
dence that  the  slayer  was  violently  insane,  in  a  distant  city,  two 
or  three  weeks  before  the  homicide,  is  competent  and  relevant  to 
the  issue  of  his  insanity  at  the  time  of  the  killing,  .iii.l  cannot  be 
excluded  because  it  does  not  go  to  prove  the  railroad  comi)any  s 
knowledge  thereof,  as  it  is  not  necessary  to  prove  both  matters  at 
the  same  time  and  by  the  same  witnesses.    St.  Louis,  I.  M.  &  S.  Ky. 
Co.  V.  Greenthal,  23  C.  C.  A.  100,  77  Fed.  150. 

V.  1  FET.CAR.PAS. IG  (241) 


s 


100  CARRIERS  OF  PASSENGERS.  (Ch,  7 


failure  so  to  do  renders  the  company  liable  for  the 
death  of  a  passenger,  shot  by  the  insane  passenger  in 
imaginary  self-defense.^ 

§  100.     ABUSIVE  LANGUAGE  AND  DISORDERLY  CON- 
DUCT. 

Not  only  must  the  carrier  guard  the  passenger  from 
assaults  by  fellow  passengers  and  others,  but  it  must  al- 
so protect  him  from  their  abusive  or  insulting  language 
and  disorderly  conduct.  Thus,  where  a  conductor  is 
informed  of  the  fact  that  a  drunken  passenger  is  call- 
ing a  female  passenger  foul  names,  and  is  using  insult- 
ing and  abusive  language  to  her,  the  failure  of  the  con- 
ductor to  interfere  and  remove  the  drunken  passenger 
will  render  tJie  company  liable  for  his  subsequent 
abuse  and  insult  of  the  female  passenger.^  So  passen- 
gers in  a  second-class  car  are  entitled  to  protection 
against  the  acts  of  fellow  passengers,  to  the  extent 
that  good  conduct  must  be  exacted  from  persons  in- 
<lined  to  vulgar  and  offensive  conduct  and  language. - 
A  railroad  company  may  be  compelled  to  respond  in 
damages  even  for  the  shrewish  tongue  of  the  wife  of 
the  station  agent.  A  woman  who  enters  a  railroad 
station  with  the  intention  of  becoming  a  passenger 
may  recover  damages  for  mental  suffering  caused  by 
abusive  language  addressed  to  her  by  the  wife  of  the 
station  agent,  in  his  hearing,  and  without  his  inter- 
ference.^ 

2  King  V.  Railway  Co.,  22  Fed.  413. 
§  100.     1  Lucy  V.  Railway  Co.,  64  Minn.  7,  65  N.  W.  944. 
■^  St.  Louis,  A.  &  T,  Ry.  Co.  v.  Mackie,  71  Tex.  491,  9  S.  W.  451. 
8  Texas  &  P.  Ry.  Co.  v.  Jones  (Tex.  Civ.  App.)  39  S.  W.  124. 
(242) 


Cll     7)  DUTY    AS    TO    ACTS    OF    THIRD    PERSONS.  §    100 

riut  one  of  two  railway  passengers  who  were  ac- 
quaintances, and  had  been  drinking  together,  and  who 
entered  the  train  together,  cannot  recover  damages 
from  the  carrier  for  abusive  language  used  towards 
him  by  the  other,  who  was  intoxicated,  or  even  for  an 
asj-ault,  where  the  conductor  used  all  reasonable  ef- 
forts to  protect  him,  quieted  the  offender  once  or  twice, 
and,  on  his  again  becoming  boisterous,  gave  him  into 
custody  at  the  next  station.*  Nor  is  the  company  lia- 
ble to  a  female  passenger  for  obscene  and  profane  lan- 
guage, indecent  exposure  of  person,  and  other  disor- 
derly conduct,  by  two  or  three  intruders,  who  came  in- 
to the  waiting  room  at  a  station,  while  plaintiff  was 
awaiting  the  arrival  of  the  train,  where  the  company 
had  no  notice  of  any  facts  which  justified  the  expecta- 
tion of  such  an  outrage,  and  no  employ^  of  the  com- 
pany knew  of  the  occurrence  when  it  happened,  except 
a  colored  employ^  or  porter,  whose  duties  were  eon- 
fined  to  looking  after  the  baggage.^  And  where  a 
passenger  on  a  vessel,  from  intoxication  and  ridiculous 
conduct,  becomes  the  sport  and  butt  of  the  other  pas- 
sengers, the  captain,  who  remonstrates,  but  takes  no 
other  steps  to  prevent  it,  is  not  liable  in  damages,  since 
no  man  ought  to  complain  of  being  ridiculed  when  he 
has  made  himself  ridiculous.^ 

4  Kinney  v.  Railroad  Co.    (Ky.)  34  S.  W.  10G6. 
6  Batton  V.  Railroad  Co.,  77  Ala.  591. 
«  Hessian  v.  Ferguson,  7  La.  532. 

(243) 


§  101 


CAKHIERS   OF   PASSENGERS.  (Ch.   7 


§  101.     OTHER  WRONGS  TO  PASSENGERS. 

As  we  have  seen,  it  is  tlie  duty  of  the  conductor,  un- 
der ordinary  circumstances,  to  protect  his  passengers 
from  trespass  while  under  his  care;   and  if  he  stands 
by,  and  sees  them  illegally  molested  in  any  way,  with- 
out an  effort  to  protect  them,  it  is  negligence,  for  which 
the  company  is  liable.      He  is  not,  however,  required 
to  enter  into  a  contest  with,  or  put  himself  in  opposi- 
tion to,  the  officers  of  the  law;  and  a  conductor,  who 
merely  stands  by,  without  taking  part  in  the  illegal 
arrest  of  a  passenger  by  known  policemen,  is  not  nec- 
essarily bound  to  inquire  into  their  authority,  or  assert 
his  own  against  it..     If,  however,  the  conductor  partici- 
pates in  the  illegal  arrest,  the  company  is  liable.^      So, 
where  one  assuming  to  act  as  a  police  officer  offers  to 
put  upon  the  cars,  as  a  passenger,  a  person  whom  he 
claims  to  have  arrested  for  crime,  the  conductor  is  not 
required  to  stop  the  train,  and  inquire  into  the  cause 
of  and  authority  for  the  arrest.^ 

The  duty  to  guard  the  passenger  against  the  acts  of 
fellow  passengers  may  even  render  the  company  liable 
for  injuries  self-inflicted  through  fear,  caused  by  the 
acts  of  fellow   passengers   and   train  hands.      Thus, 

§  101.     1  Duggan  v.  Railroafl  Co.,  151)  Pa.  St.  248,  28  Atl.  182,  ISG. 

2  .Tackson  v.  Railroad  Co.,  87  Mo.  422.  In  this  case  an  officer  of 
the  law  placed  on  a  train  a  man  mortally  wounded,  whom  he 
claimed  to  have  arrested.  The  conductor  remonstrated  with  the 
officer  against  carrying  the  man,  and  stopped  the  train,  but  desisted 
Avhen  the  officer  showed  his  badge  of  office,  and  stated  that  he  had 
the  papers  authorizing  the  arrest.  Held,  that  the  company  was  not 
liable  for  cari-jing  off  the  passenger. 
(244) 


Ch.    7)  DUTY    AS    TO    ACTS    OF    THIRD    PERSONS.  §    102 

where  passengers  and  the  conductor  on  a  train  so  work 
on  a  passenger's  mind  by  threats  to  tie,  rob,  and  throw 
him  from  the  train,  that  he  jumps  from  tlie  moving 
train  in  order  to  save  himself  from  the  imagined  im- 
pending calamity,  the  company  is  liable  for  injuries 
sustained  in  the  leap.^ 

But  a  carrier  is  not  negligont  in  failing  to  guard 
against  accidents  which  could  not  have  been  reason- 
ably anticipated.  Thus,  where  the  dress  of  a  female 
passenger  on  an  open  street  car  is  set  on  fire  by  a  light- 
ed match  carelessly  thrown  by  a  fellow  jiasseuger,  and 
she  jumps  from  the  car,  and  is  severely  burned,  before 
the  driver,  who  immediately  stopped  the  car,  could 
render  any  assistance,  the  company  is  not  liable.* 

§   102.     CROWDS  AT  STATIONS. 

Where  a  railroad  company,  by  means  of  reduced 
rates  and  advertisements,  induces  an  unusually  large 
crowd  to  collect  at  a  station,  it  is  bound  to  use  such 
means  as  are  reasonably  necessary  to  prevent  injury 
to  individuals  from  the  conduct  or  pressure  of  the 
crowd  in  passing  to  and  from  its  trains.'  And,  in  an 
action  by  a  })assenger  who  was  thrust  off  the  i)latform 
and  injured  by  the  swaying  of  the  crowd,  the  (juestion 

«  Spohn  V.  Railway  Co.,  87  Mo.  74. 

4  Sullivan  v.  Railway  Co.,  VM  Mo.  ],  .'M  S.  W.  ."00. 

§  102.  1  Taylor  v.  Rciinsylvania  Co.  (C.  C.  Uliio)  50  Fed.  7^5. 
A  jury  is  warranted  in  tindiuR  nej;li;,'euce,  where  a  railroad  com- 
pany permitted  its  station  platform  to  become  overci-owMled  wiili 
persons  waiting  for  trains,  so  that  cnc  of  llu'in  was  puslird  olT  llif 
platform  and  injured.  McGearly  v.  Railway  Co.,  15  App.  l>iv.  2, 
4;j  N.  Y.  Supp.  108G. 

(245) 


§    lO.")  CARRIERS   Of  PASSENGERS.  (Ch.   7 

whether  the  proper  precautions  were  taken  is  for  the 
jury.-  Kut  when  the  company  has  provided  a  staff 
of  servants  sufficient  to  discharge  the  duties  of  preserv- 
ing order  among  numbers,  by  guiding  and  instructing 
them  as  to  the  mode  of  obtaining  and  taking  their  pla- 
ces in  the  carriages,  it  need  not  go  further,  and  furnish 
a  staff  sufficient  to  cope  with  the  force  and  violence  of 
a  lawless  crowd,  rushing  through  the  station.' 

§     103.       INTERFERENCE     WITH    PASSENGERS      EM- 
BARKING ON  AND  ALIGHTING  FROM  TRAINS. 

Neither  the  common  law  nor  statute  imposes  on  the 
carrier  the  duty  of  escorting  outgoing  passengers  from 
the  interior  of  the  car  to  a  place  of  safety  outside  the 
station  grounds,  nor  incoming  passengers  from  its 
waiting  rooms  to  a  seat  inside  the  train.  Nor  is  a  com- 
mon carrier  bound  to  protect  its  passengers  from  rude- 
ness or  bad  manners  on  the  part  of  strangers  or  other 
passengers,  unless  such  conduct  amounts  to  a  breach 
of  the  peace.'^  Thus,  a  railroad  company  is  not  liable 
for  injuries  to  a  female  passenger,  who,  as  she  was 

2  Hosan  v.  Railway  Co.  (1873)  28  Law  T.  (N.  S.)  271. 

3  Caiinou  V.  Midland  Ry.  Co.,  L.  R.  G  Ir.  C.  L.  199.  In  this 
case  a  railroad  company,  which  had  sold  a  hirge  number  of  harvest 
tickets,  increased  its  force  of  servants  from  four  to  seven,  in  order 
to  handle  the  crowd.  While  waiting  for  the  train,  a  fight  ensued 
in  tlie  village  at  which  the  station  was  located,  between  the  harvest 
men  and  the  villagers.  When  the  train  arrived,  the  outside  crowd 
made  a  rush  into  the  station,  and  pushed  three  of  the  harvest  men 
from  the  platform,  one  of  whom  was  killed  by  the  approaching  en- 
gine.    Held,  that  the  company  was  not  liable  for  his  death. 

S  103.    1  Ellinger  v.  Railroad  Co.,  153  Va.   St.  213,  25  Atl.  1132; 
Graeff  v.  Railroad  Co.,  1(51  Pa.  St.  230,  28  Atl.  1107. 
(24(5) 


Cll.   7)  DUTY    AS    TO    ACTS    OF    THIHD    PERSONS.  §    lO:"^ 

about  to  alight  from  a  street  car,  was  jostled  off  by 
another  passenger,  rudely  pushing  by  her  to  enter  the 
car.^  Neither  is  a  railroad  company  liable  for  inju- 
ries-to  a  passenger  about  to  leave  a  station  through  a 
swinging  storm  door  for  injuries  causeil  by  an  impa- 
tient traveler  entering  the  station,  who  heedlessly 
rushes  ahead,  violently  pushes  the  door  open,  and 
causes  it  to  forcibly  strike  plaintiff.^  Neither  is  it 
liable  for  the  act  of  a  passenger  in  catching  hold  of  a 
bell  rope  to  steady  himself  as  the  train  is  stopping, 
which  has  the  effect  of  causing  a  signal  to  be  trans- 
mitted to  the  engineer  to  start  the  train,  and  an  injury 

2  Ellinger  v.  Railroad  Co.,  153  Pa.  St.  213,  2.5  Atl.  1132. 

8  Graeft-  v.  Railroad  Co.,  161  Pa.  St.  230,  28  Atl.  11U7.  Where  a 
boy,  14  years  old,  stands  on  the  platform  of  a  crowded  street  car. 
with  one  foot  resting  on  the  steps,  and  is  pushed  off  by  a  passenger 
rushing  out  of  the  car  as  it  approaches  a  transfer  station,  it  is 
proper  to  charge  that  the  company  is  not  liable  for  the  conduct  of 
the  passenger,  unless  it  was  unusual  and  disorderly,  and  could  have 
been  prevented  by  the  persons  in  charge.  Rani'.all  v.  Railroad  Co., 
139  Pa.  St.  464,  22  Atl.  639.  affirming  8  Pa.  Co.  Ct.  R.  277.  A  rail- 
road company  is  not  liable  to  a  passenger,  who  was  injured,  while 
attempting  to  board  a  moving  train,  by  stumbling  over  a  person 
standing  on  the  car  platform,  where  no  want  of  caie  on  the  part  of 
the  company  is  shown  in  permitting  him  to  be  where  he  was. 
Ilollman  v.  Railroad  Co.,  2  Posey,  Unrep.  Cas.  (Tex.)  557.  A  rail- 
road company  is  not  liable  for  the  act  of  an  incoming  passenger  in 
stepping  on  the  foot  of  a  passenger  about  to  alight,  where  the  guard 
had  requested  people  on  the  platform  to  allow  the  passeng<»rs  to 
leave  the  car  before  they  attempted  to  enter,  and  his  request  was 
not  heeded.  Thomson  v.  Railway  Co.,  75  Hun,  548,  27  N.  Y.  Supp. 
008.  A  railway  company  is  not  liable  for  the  act  of  a  stranger,  wlio 
crowded  plaintiff  from  a  car  step  just  as  the  train  was  about  to 
start,  resulting  in  an  injury  to  plaintitf  by  striking  against  a  post 
near  the  track,  while  nmning  along  with  the  train,  trying  to  get  on. 
Chi<ago  &  N.  W.  Ry.  Co.  v.  Scales,  90  111.  586. 

(247) 


§  104  CARRIERS  OF  PASSENGERS.  (Ch.  7 

to  result  to  another  passeujier  by  the  sudden  start  of 
the  train  while  alightino/  So  any  encouragement 
given  to  a  passenger  by  other  passengers  to  attempt  to 
get  off  a  train  at  a  place  of  danger,  and  not  a  stopping 
place,  except  for  water,  resulting  in  injury  to  him, 
cannot  be  imputed  to  the  railway  company  as  in  any 
way  its  act,  and  it  is  not  responsible  for  the  same/ 
An  elevated  railroad  company  is  not  liable  for  the  act 
of  a  drunken  passenger  in  stepping  on  the  foot  of  a 
fellow  passenger,  though  the  guard's  attention  had 
been  called  to  his  intoxication,  where  he  had  done 
nothing  that  would  have  justified  the  guard  in  remov- 
ing him  from  the  car.® 

104.     TRAIN  WRECKING. 

A  railroad  company  is  not  bound  to  take  precautions 
against  the  criminal  acts  of  strangers  which  render  its 
track  unsafe,  and  which  could  not  have  been  foreseen 
by  any  human  skill  or  knowledge.  This  principle  is 
illustrated  by  a  recent  case  decided  in  Pennsylvania. 
A  passenger  was  injured  in  a  collision  between  his 
train  and  two  loaded  coal  cars.  On  the  morning  of 
the  day  of  the  accident,  the  coal  cars  had  been  left  on 
a  side  track  at  a  distance  of  about  two  miles  from  the 
place  of  the  collision.  The  cars  were  properly  braked, 
and  a  throw-off  switch,  which  would  have  derailed  the 
cars,  if  left  undisturbed,  was  left  open,  so  as  to  throw 

4  Ferry  v.  Railroad  Co.,  US  N.  Y.  497,  23  N.  E.  822,  affirming  54 
N.  Y.  Super.  Ct.  325. 

5  Illinois  Cent.  R.  Co.  v.  Green.  81  111.  19. 

6  Thomson  v.  Railway  Co.,  T.j  Hnn,  548,  27  N.  Y.  Snpp.  6u8. 

(248) 


Ch.   7)  DL'TV    AS    TO    ACTS    OF    THIRD    PERSONS.  §    104 

the  cars  from  the  track  if  they  were  moved.  The  cars 
remained  in  this  condition  during  the  day.  Late  in 
the  afternoon  a  boy  got  upon  the  cars,  loosed  the 
brakes  by  hammering  them  with  a  coupling  pin,  and 
closed  the  throw-off  switch.  The  cars  ran  down  the 
siding  onto  the  main  line,  and  collided  with  the  plain- 
tiff's train.  It  was  held  that  the  railroad  company 
was  not  negligent  in  failing  to  open  another  throw-oft' 
switch  nearer  the  main  track,  or  in  failing  to  furnish 
either  switch  with  locks,  since  it  was  not  bound  to  an- 
ticipate the  boy's  criminal  acts.'      But  a  railroad  com- 

§  104.    1  Fredericks  v.  Railroad.  1.57  Pa.  St.  103.  27  Atl.  689.     In 
this  case  tlie  court  said:     "The  injury  was  not  the  result  ot  any  de- 
fect in  any  of  the  appliances  used  by  defendant,  nor  of  any  want 
of  skill,  foresight,  and  diligence  which  was  humanly  possible.     The 
injury  was  not  the  result  of  any  act  of  carelessness  or  negligence 
on  the  part  of  anybody.     It  was  the  result  exclusively  of  a  delib- 
^■rate.  intended,   willful,   attirmative.   positive  act   of  criminal   tres- 
pass.    No  mere  act  of  carelessness  or  negligence  could  have  turned 
over  the  switch,  which  was  set  to  derail  the  cars,  so  that  it  would 
throw  the  cars  on  the  track  instead  of  off.     No  mere  act  of  care- 
lessness or  negligence  could  or  would  have  taken  out  the  coupling 
}tin  which  held  the  cars  together.     No  mere  act  of  carelessness  or 
negligence  could  or  would  have  driven  back  the  ratchet  which  held 
the  brakes  in  place,— four  of  them  in  all,— so  as  to  set  the  cars  in 
motion.     All  and  every  one  of  these  acts  required  special  physical 
«*ffort.  exerted  for  the  very  purpose  of  releasing  the  cars  from  the 
entirely  sutticient  restraints  which  had  l)een  inii)osed  on  them  by 
the    company's    agents;     and    these    efl'orts    were    made,    each    one 
after  the  other,  in  a  wi<-ked  .-Mid  deadly  succession,  until  tiie  liorriblc 
purpose  was  accomplished,  and  the  work  of  deatli  and  destruction 
resulted.     How  can  it  be  s.-iid  tliat  any  liuinaii  skill,   foresight,  or 
<iiligence  could  have  divined  or  believed  or  imagint>d  that  such  acts 
wo\ild  have  been  perpetrated?     It   would  require  a  gift  of  omnis- 
<ience  to  foresee  them,  or  ;i  gift  of  i)roi»liecy  to  foretell  them;    and 
neither  of  these  qualities  are  Inunaa.     It  is  useless  to  say  tliat  addi- 


§  104  CARRIERS  OF  PASSENGERS.  (Cll.  7 

pany  is  bound  to  so  secure  its  cars  on  side  tracks  that 
tliey  cannot  be  put  in  motion  by  the  careless  acts  of 
strangers,  as  distinguished  from  their  willful  or  crim- 
inal acts.'  So  a  railroad  company  is  not  liable  for  in- 
juries to  a  passenger  caused  by  the  malicious  acts  of 
stranoers  in  removing  the  spikes  which  fastened  the 
chairs  and  rails  to  the  ties  and  sleepers,  where  it  ap- 
pears the  three  other  trains  had  safely  gone  over  this 
portion  of  the  road  within  two  hours  before  the  acci- 

tional  precautions  might  have  been  taken.     So  they  might,  if  the  pos- 
sibility of  such  acts  could  have  been  known  in  advance.     A  force  of 
men  might  have  been  stationed  at  the  ears,  to  prevent  the  possibilitv 
of  another  force  of  men  invading  them  and  not  setting  them  loose; 
but  such  transactions  are  outside  the  pale  of  human  experience,  and 
it  is  simply  preposterous  to  say  that  the  omission  to  take  that  kind 
of  precaution  is  negligence,  in  any  aspect  of  the  case.     Placing  blocks 
under  the  wheels,  and  locks  on  the  switches,  avails  nothing  against  the 
deliberate  and  intended  purpose  to  set  free  loaded  cars  in  such  ca-cum- 
stances  as  these.    The  same  purpose  which  would  turn  over  the  switch, 
take  out  the  coupling  pin,  and  then  hammer  at  the  brakes  until  they 
w-ere  opened,  would  remove  blocks  from  the  wheels,  and  shatter  the 
lock  on  the  switch.     But  it  is  not  one  or  another  particular  act  of  pre- 
caution, the  want  of  w^hich  is  to  be  set  up  as  a  test  of  the  legal  duty 
of  precaution,  but  the  whole  criminal  purpose  sought  to  be  accom- 
•  plished.     If  that  purpose  and  coiTesponding  action  were  such  as  not 
to  subject  defendant  to  a  duty  of  precaution  against  it,  the  presence 
of  some  precautions,  and  the  absence  of  others,  which  might  or  might 
not  have  been  effective,  or  might  have  been  more  effective  than  those 
that  were  observed,  is  of  no  moment  in  tlie  consideration  of  the  gen- 
eral question  as  to  the  existence  of  the  legal  duty.     If  the  purpose 
and  the  act  were  criminal,  and  were  those  of  a  stranger,  and  could 
not  have  been  foreseen  by  any  Imuiau  skill  or  knowledge,  the  dury 
of  precaution  against  such  acts  does  not  arise,  and  negligence  doe?? 
result  from  tlie  want  of  such  precautious.     The  rule  of  highest  skill 
and  care  does  not  require  the  impossible,  or  the  very  extreme  of  care 
and  precaution  that  can  be  imagined." 
2  Smith  V.  Railroad  Co.,  40  N.  J.  Law,  7. 
(250) 


Cll.   7)  DUTY    AS    TO    ACTS    OF    THIRD    PERSONS.  §    105 

dent,  wliicli  occurred  during  the  night.'  Neither  the 
conductor  of  a  train  nor  the  company  is  obliged  to  keep, 
constant  watch  of  the  rails  on  both  sides  of  a  train 
standing  at  a  station,  to  ascertain  whether  dangerous 
explosives  are  placed  under  the  cars,  either  by  stran- 
gers or  employes  of  the  company  not  acting  within  the 
scope  of  their  employment;  and,  where  the  conductor 
is  ignorant  of  the  fact  that  a  fireman  has  placed  tor- 
pedoes on  the  track  on  a  Fourth  of  Juh,  the  conduct- 
or's act  in  starting  the  train  without  removing  the  tor- 
pedoes is  not  negligence,  so  as  to  render  the  company 
liable  to  a  person  on  the  platform  injured  by  their  ex- 
plosion.* 

§  105.     MISSILES  THROWN  FROM  CARS. 

Occupants  of  postal  cars  are  no  exception  to  the  rule 
requiring  the  carrier  to  guard  passengers  from  the  vio- 
lence of  others.  While  a  railway  company  has  no 
right  to  interfere  with  a  United  States  mail  agent  in 
the  discharge  of  his  official  duties,  yet  it  has  the  right, 
and  it  is  its  duty,  to  prevent  him,  while  on  its  trains, 
from  continuing  any  dangerous  practice  of  which  it 
has  notice,  which  is  liable  to  cause  injuries  to  passen- 
gers and  others  lawfully  on  its  premises.^  Hence  a 
railroad  company  which  knowingly  or  habitually  suf- 
fers mail  bags  to  be  thrown  upon  its  passenger  plat- 
form from  rapidly  moving  trains  is  directly  and  indi- 

8  Deyo  V.  Railroad  Co.,  34  N.  Y.  8.     See,  also,  Houston  &  T.  C.  Ry. 
Co.  V.  Lee,  09  Tex.  n.'G,  7  S.  W.  .^24. 
*  Chicago,  B.  &  Q.  R.  Co.  v.  Epperson,  26  111.  A  pp.  72. 
§  105.     1  Galloway  v.  Railway  Co.,  50  Minn.  340,  57  N.  W.  lOoS. 

(251) 


§  105  CARRIERS  OF  PASSENGERS.  (Ch.  7 

vidually  liable  to  a  person  who  may  be  injured  thereby, 
while  lawfully  on  the  platform.'  So  it  is  the  com- 
pany's duty  to  guard  against  accidents  which  may  be- 
fall passengers  by  stumbling  over  such  bags  in  the 
dark/  But  a  railroad  company  is  not  liable  for  the 
act  of  a  postal  clerk  in  throwing  a  mail  bag  on  the  sta- 
tion platform,  in  the  way  of  passengers  entering  the 
car,  unless  the  mail  bag  had  been  so  thrown  on  other 
occasions  before  the  accident,  and  the  company  knew, 
or  should  have  known,  the  fact.'     And  a  railroad  com- 

2  Cai-peuter  v.  RaiU-oad  Co..  97  N.  Y.  494.  reversing  24  Hun,  104; 
Snow  V.  Railroad  Co.,  136  Mass.  5.52:  Williams  v.  Railroad  Co.  (Ky.) 
32  S.  W.  934;  Ohio  &  M.  Ry.  Co.  y.  Simnis,  43  111.  App.  260.  A  cus- 
tom of  mail  clerks,  continued  for  a  period  of  two  years,  to  throw 
mail  sacks  from  the  cai-s  on  the  station  platform,  will  charge  the  com- 
pany with  notice  of  the  practice,  though  the  sacks  were  not  always 
thrown  on  the  same  place  on  the  platform.  Ayres  v.  Railroad  Co., 
4  App.  Div.  511,  40  N.  Y.  Supp.  11.  And  since  the  practice  is  one 
from  which  injui-y  to  a  person  on  the  platform  may  reasonably  be 
anticipated,  it  is  not  necessary,  to  charge  the  company  with  liability, 
that  on  some  former  occasion  a  like  injui-y  had  occurred.  Galloway 
V.  Railway  Co.,  56  Minn.  346,  57  X.  W.  1058. 

3  Sargent  v.  Railway  Co.,  114  Mo.  348,  21  S.  W.  823. 

4  Ayres  v.  Railroad  Co.,  77  Hun.  414,  28  N.  Y.  Supp.  789.  See.  also, 
Muster  v.  Railroad  Co.,  61  Wis.  326,  21  N.  W.  223,  where  a  railroad 
employe  was  struck  by  a  mail  bag  thrown  from  the  postal  car.  A 
notice  from  a  railroad  company,  instructing  baggage  masters  and 
mail  agents  to  throw  the  mail  at  particular  points,  concluded  with 
these  words:  "It  must  be  distinctly  understood,  howevei-.  that  this 
does  not  in  any  way  relieve  baggage  mastei-s  and  mail  agents  from 
using  all  possible  precautions  against  liability  of  injuring  any  one  in 
throwing  off  mails."  Held,  that  these  words  did  not  make  it  the  duty 
of  the  baggage  master,  on  trains  carrj-ing  mail  agents,  to  observe  how 
mail  bags  were  thi-own  off,  nor  render  the  baggage  master's  neglect  in 
making  such  observations  the  neglect  of  the  railroad  company,  so  as 
to  make  it  responsible  for  the  negligence  of  the  mail  agent  in  thro.v- 

(252) 


Ch.   7)  DUTY    AS    TO    ACTS    OF    THIRD    PERSONS.  §    lOo 

paiiy  wliicli  lias  established  a  rule  that  the  express  car 
shall  be  unloaded  outside  the  depot,  and  not  in  the 
depot,  is  not  responsible  for  an  injury  to  a  passenger, 
who,  ^yhile  passing  through  the  depot,  was  struck  by 
a  bag  thrown  from  the  express  car  in  violation  of  the 
rule.'* 

ing  off  the  mail.     Pennsylvania  K.  Co.  v.  Russ,  57  N.  J.  Law,  126,  30 
Atl.  524. 
6  Ferrell  v.  Railroad  Co.  (Dist.  Ct.)  12  Wkly.  Law  Bui.  234. 

(253) 


I  106  CARRIERS  OF  PASSENGERS.  (Ch.  8 

CHAPTER  VIII. 

DUTY   TO   PASSENGERS   UNDER  DISABILITY. 

fi  106.    Passenger  under  Disability  Entitled  to  More  Attention  than 
Ordinary  Passenger. 

107.  Sick  and  Infirm  Passengers. 

108.  Same— Duty  in  Receiving  and  Discharging. 

109.  Same— Ejection  and  Carrying  Past  Destination, 
no.    Children. 

in.    Intoxicated  Passengers. 
112.    Same— Ejection. 

§  106.     PASSENGER   UNDER    DISABILITY  ENTITLED 
TO  MORE  ATTENTION  THAN  ORDI- 
NARY PASSENGER. 

The  rule  requiring  the  carrier  to  exercise  the  high- 
est degree  of  care  for  the  safety  of  its  passen- 
gers compels  it  to  take  into  account  differ- 
ences in  the  ages  and  bodily  condition  of  pas- 
sengers; and  the  carrier  must  besto"W  a  degree 
of  attention,  beyond  that  given  to  an  ordinary 
passenger,  on  one  -whom  it  knows,  or  has  reason 
to  know,  to  be  affected  by  a  disability. 

It  seems  to  be  a  proposition  applicable  to  the  entire 
law  of  negligence  that  greater  care  is  required  when 
dealing  with  a  person  known  to  possess  less  than  ordi- 
nary faculty,  than  when  dealing  with  one  in  possession 
of  all  his  faculties.^   Certainly  a  sick  or  an  aged  passen- 

§  106.     1  In  estimating  the  probability  of  danger  to  others,  we  are 
entitled  to  assume,  in  the  absence  of  anything  to  show  the  contrary, 
that  they  have  the  full  use  of  common  faculties,  and  are  capable  of 
(254) 


Ch.   8)  DUTY    TO    PASSEXGEKS    UNDER    DISABILITY.  §    106 

i2:er,  a  delicate  woman,  a  lame  man,  or  a  child,  is  enti- 
tled to  more  attention  and  care  from  a  railroad  com- 
pany than  one  in  good  health  or  under  no  disability. 
All  these  classes  are  entitled  to  ride  in  the  cars,  and 
what  would  be  reasonable  care  towards  others  might 
well  be  carelessness  or  neglect  towards  them.^  Yet, 
unless  the  servants  of  a  railroad  company  know  of,  or 
liave  reason  to  believe,  the  existence  of  a  disability  on 
the  part  of  a  passenger,  the  company  is  held  to  no 
greater  degree  of  care  towards  him  than  if  the  disabil- 
ity  did  not  exist.^  But  in  determining  whether  or  not 
the  agents  of  a  railroad  company  have  reason  to  know 
the  existence  of  the  disability  of  a  passenger,  it  will  be 
presumed  that  they  have  the  ordinary  senses.  They 
certainly  are  presumed  and  required  to  have  the  ordi- 

fxercising  ordinaiy  caution.  Thus,  where  a  deaf  man  is  run  over  for 
want  of  hearing  a  shout  or  whistle,  this  cannot  be  set  down  to  the 
fault  of  the  train  employes.  And  this  is  not  because  there  is  any 
fault  in  the  person  harmed,  for  there  may  well  be  no  fault  at  all.  On 
the  other  hand,  it  seems  clear  that  greater  care  is  required  of  us 
when  it  does  appear  that  we  are  dealing  with  persons  of  less  than 
ordinary  faculty.  Thus,  if  a  man  driving  sees  that  a  blind  man,  an 
aged  man,  or  a  cripple,  is  crossing  the  road  ahead,  he  must  govern 
his  course  and  speed  accordingly.  He  will  not  discharge  himself,  in 
the  event  of  a  mishap,  merely  by  showing  that  a  young  and  active 
man,  with  good  sight,  would  have  come  to  no  harm.  Pol.  Torts 
(Webb's  Ed.)  p.  564. 

2  Sheridan  v.  Railroad,  36  N.  Y.  39.  The  degree  of  care  Is  tlie  same, 
—that  is  to  say,  the  greatest  care,— but  what  would  be  sutiiclent  to  in- 
pure  the  safety  of  one  person  may  not  be  sufficient  for  others  phys- 
ically less  able  to  take  care  of  themselves.  St.  Louis,  A.  &  T.  Ry.  Co. 
V.  Finley,  79  Tex.  85,  15  S.  W.  266.  See,  also.  East  Line  &  R.  R.  Ry. 
Co.  V.  Rushing,  69  Tex.  3(16,  6  S.  W.  834;  AVardle  v.  Railroad  Co.,  35 
La.  Ann.  202. 

8  Jacksonville  St.  Ry.  Co.  v.  Lhuppell,  21  Fla.  175. 

(255) 


§    ]07  CARRIERS   OF  PASSENGERS.  (Ch.   8 

nary  eyesight,  so  that  tliey  can  distinguisli  between  a 
man  in  the  vigor  of  life  and  a  woman  in  a  state  of  preg- 
nancy, and  accompanied  by  young  children.  They  are 
expected  to  have,  and  must  have,  in  order  to  discharge 
their  duties  properly,  judgment  enough  to  know  that 
what  would  be  safe  for  the  one  would  not  be  safe  for 
the  other.* 

§  107.     SICK  AND  INFIRM  PASSENGERS. 

In  a  pioneer  case  on  this  subject  it  was  said:  "Eaii- 
road  cars  are  not  traveling  hospitals,  nor  their  em- 
ployes nurses.  Sick  persons  have  the  right  to  enter  the 
cars  of  a  railroad  company;  as  common  carriers  of  pas- 
sengers, they  cannot  prevent  their  entering  their  cars. 

4  Baltimore  &  O.  R.  Co.  v.  Leapley,  tJ">  ^id-  -jTC.  .577,  4  Atl.  891.  In 
KeUer  v.  Railroad  Co.,  27  Minn.  178,  6  N.  W.  486,  it  is  said:  "As  rail- 
road companies  cany  not  merely  the  vigorous  and  active,  but  also 
those  who,  from  age  or  extreme  youtli,  are  slower  in  their  move- 
ments than  vigorous  and  active  persons,  the  time  of  stopping  is  noc 
to  be  measured  by  the  time  in  which  tlie  latter  may  make  their  exit 
from  the  cars,  but  by  the  time  in  which  the  other  class  may,  using 
diligence,  but  without  hurry  and  confusion,  alight.  Those  in  charge 
of  the  trains  axe  bound  to  presume  that  there  may  be  such  person-s 
on  the  cars,  and,  unless  they  know  they  are  not,  they  have  no  riglit 
to  start  the  trains  until  they  have  waited  long  enough  to  allow  such 
persons  to  alight;  nor,  even  after  waiting  a  reasonable  time  for  such 
persons  to  get  off,  have  they  a  right  to  start  the  trains  without  using 
reasonable  care  to  ascertain  if  there  are  such  persons  in  the  act  of 
getting  off."  This  decision  is  certainly  opposed  to  the  weight  of  au- 
thority, in  so  far  as  it  holds  that  the  carrier  is  bound  absolutely  to 
know  that  passengers  under  disabiUtj'  are  on  the  train;  and  it  prob- 
ably stands  alone  in  holding  that  the  carrier,  after  stopping  the  train 
a  reasonable  length  of  time  at  a  station,  is  bound  to  ascertain  whether 
passengers  are  in  the  act  of  getting  on  or  off  before  starting  the  train. 
See  ante,  §  66. 
(256) 


Ch.   8)  DUTY    TO    PASSENGERS    UNDER    DISABILITY.  §    107 

If  they  are  iii(ai)able  of  takiiijj;-  care  of  tlieiuselves,  they 
should  have  attendants  alouji,  to  care  for  them,  or  to 
render  them  such  assistance  as  they  reijuire  in  the  cars, 
and  to  assist  them  from  the  cars  at  the  point  of  de- 
barkation." ^  Now,  in  so  far  as  this  case  hohls  that 
the  known  disability  of  the  i:)assenf»er  casts  no  addi- 
tional duty  on  the  carrier,  it  certainly  is  not  sound. 
"In  travel  by  ship,  care  and  medical  attendance  are 
always  provided  by  the  company  as  one  of  the  necessi- 
ties of  the  journey.  In  travel  by  rail  no  such  neces- 
sitv  exists,  and  therefore  a  railroad  conipanv  is  under 
no  obligation  to  furnish  hospitals  on  wheels,  or  physi- 
cians or  nurses  to  attend  the  sick  on  their  journeys. 
But  without  hospitals,  and  Avithout  ])hysicians  and 
nurses  of  their  own,  still  much  can  be  done  to  alleviate 
the  pains  and  aches  of  a  sick  passenger.  While  the 
train  is  in  motion,  the  passenger  is  utterly  helpless  as 
to  aid,  except  from  those  on  the  train.  His  fell<>w  pas- 
sengers owe  him  no  duty  except  humanity.  The  alter- 
native is  presented  of  being  cared  for  by  his  fellow  pas- 
sengers, by  the  company,  or  to  writhe  in  pain  and  sick- 
ness until  relieved  by  death  or  the  end  of  his  journey. 
By  taking  passage  and  ])ayiug  his  fare,  the  relation  of 

§  U)7.  1  New  Orleans.  J.  cV:  G.  N.  U.  Co.  v.  Sl.iih.iiii,  4-_*  .Miss.  GOT, 
fnlldwed  in  I'ullmau  Palace-Car  Co.  v.  HaikiT,  4  Colo.  WW.  In  tlu> 
Mississippi  case  it  was  lield  that  the  failure  to  stop  a  train  at  a 
station  a  sufficient  length  of  time  to  enable  a  siclv  passenger  to  get 
off  does  not  render  the  company  liable,  where  tlie  conductor  stopped 
the  train  a  second  time  within  r,(>  feet  of  tlic  plailonii.  and  liad  the 
passenger  carried  on  a  chair  into  the  station  house,  with  ilie  assist- 
ance of  the  company's  employes,  though  he  refused  to  back  the  train 
into  the  station.  No  fault  can  justly  be  found  with  tliis  decision,  but 
the  language  in  the  opinion  quoted  in  tlie  text  is  too  sweeping. 

V.  1  FET.CAR.PAS. 17  (257) 


§  107  CARRIERS  OF  PASSENGERS.  (Ch.  8 

carrier  and  passenger  is  established  between  tbe  com- 
pany and  himself,  and,  as  he  is  nnder  the  control  of  the 
company  for  many  purposes,  and  debaiTed  by  the  rapid 
movement  of  its  train  from  receiving  aid  from  the  out- 
side world,  it  would  seem  to  follow,  as  a  necessity  of 
the  situation,  that  those  who  have  received  Ms  money, 
and  are  thus  rapidly  transporting  him,  should  assume 
the  obligation  of  taking  reasonable  care  of  him,  in  case 
of  sickness  while  on  the  train.  The  obligation  is  on 
the  company,  not  only  for  the  benefit  of  the  sick  per- 
son, but  also  for  the  comfort,  and  sometimes  the  safety, 
of  other  passengers.  A  sick  person,  by  his  cries  and 
moans,  may  so  annoy  the  other  passengers  as  to  re- 
quire his  removal  to  a  separate  department  of  the  train. 
In  case  of  smallpox  or  cholera,  or  other  contagious  dis- 
ease, the  comfort  and  safety  of  the  other  passengers 
would  demand  the  early  removal  of  the  afflicted  pas- 
senger. The  company  would  in  such  case  be  charged 
with  the  duty  of  removal,  and  reasonable  care  there- 
after, until  the  afflicted  person  could  be  otherwise 
cared  for."  ^  It  was  accordingly  held  that,  where  a 
passenger  becomes  ill  during  the  journey,  the  railroad 
company  is  under  obligation  to  give  him  such  care  as 
is  fairly  practicable,  with  the  facilities  at  hand,  with- 
out thereby  unduly  delaying  its  train,  or  unreasonably 
interfering  with  the  safety  and  comfort  of  its  other 
passengers.^      And  if  the  company  voluntarily  accepts 

2  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Saltzman,  52  Ohio,  558,  40  N.  E. 
S91,  affirming  9  Ohio,  C.  C.  230. 

3  Id.  In  this  case  it  was  held  that  a  passenger  assisting  in  cairy- 
ing  a  sick  passenger  from  one  ear  to  another  may  recover  for  injuries 
sustained  in  stepping  between  the  platforms,  where  there  was  not 

(258) 


Ch.    8)  DUTY    TO    PASSENGERS    UNDER    DISABILITY.  §    107 

a  person  as  a  passenger,  without  an  attendant,  whose 
inability  to  care  for  himself  is  apparent  or  made  known 
to  its  servants,  and  renders  special  care  and  assistance 
necessary,  the  company  is  negligent  if  such  assistance 
is  not  afforded.  In  such  a  case,  it  must  exercise  the 
degree  of  care  commensurate  with  the  responsibility 
which  it  has  thus  voluntarily  assumed,  and  that  care 
must  be  such  as  is  reasonably  necessary  to  insure  the 
safety  of  the  passenger,  in  view  of  his  physical  and 
mental  condition.  This  is  a  duty  required  by  law,  as 
well  as  the  dictates  of  humanity.* 

The  practical  applications  of  these  principles  have 
been  quite  numerous.  Thus  a  sick  passenger  on  a 
street  car  is  entitled  to  be  treated  as  such,  the  conduct- 
or knowing  of  his  condition."  Where  the  only  passen- 
ger on  an  electric  car  is  taken  suddenly  ill,  and  re- 
quests the  conductor  to  stop  the  car,  so  that  she  can 
get  off,  it  is  for  the  jury  to  say  whether  the  conductor 
was  negligent  in  refusing  her  request,  and  leaving  her 
uncared  for,  when  there  was  no  other  person  at  hand 
to  render  her  assistance.'  The  fact  that  a  passenger's 
arm  was  broken  before  he  undertook  a  journey  does 
not  debar  him  from  recovering  for  injuries  sustained  in 
a  railroad  wreck,  though  he  would  have  escaped  injury 
had  he  been  physically  sound.'  A  railway  caiTier  of 
passengers  has  no  right,  where  care  and  diligence  can 

suflifiont  liyht  to  enable  a  person  to  see  the  danger,  and  no  warning 
was  given. 
*  Croom  V.  liailway  Co.,  52  Minn.  296,  53  N.  W.  1128. 

6  Atlanta  Consol.  St.  Ry.  Co.  v.  Hardago,  93  Ga.  457.  21  R.  R.  100. 
e  McC'ann  v.  Railway  Co.  (N.  J.  Err.  &  App.)  34  Atl.  1052. 

7  Allison  V.  Railroad  Co.,  42  Iowa,  274. 

(259) 


§108  CARRIERS   OF   PASSENGERS.  (Ch.   8- 

prevent  it,  to  leave  a  helpless  passeiii;er,  who  has  fallen 
from  one  of  its  trains,  through  its  negligence,  in  a  sit- 
uation of  known  danger;    and  where  it  knows  of  the 
fact  that  he  is  lying  on  the  track  in  an  unconscious  con- 
dition, it  must  use  proper  care  and  diligence  to  prevent 
injury  from  passing  trains.'      Where  an  upper  tier  of 
berths  in  the  steerage  gives  way  in  the  nighttime,  and 
a  passenger  in  one  of  the  lower  berths,  believing  that 
the  ship  is  going  down,  becomes  paralyzed  with  fear,, 
she  is  entitled  to  such  care  in  removing  her  from  the 
berth  as  will  furnish  her  protection  in  her  prostrate 
condition;    and  the  steamship  company  is  liable  for 
injuries  sustained  from  the  rolling  of  the  ship,  while 
she  was  lying  on  the  floor,  unable  to  control  herself,, 
after  her  removal  from  the  berth, ^ 

§  108.    SAME-DUTY    IN    RECEIVING   AND  DISCHAR- 
GING. 

A  passenger,  blind,  aged,  sick,  or  infirm,  whose  con- 
dition is  known  to  the  carrier,  is  entitled  to  more  care 
and  attention,  as  well  as  to  greater  time  and  assist- 
ance, in  getting  on  and  off,  than  a  physically  sound  pas- 
senger.^     Where  a  railroad  company  knows  of  an  in- 


8  CiiKinnati.  1.,  ^^t.  L.  &  C.  R.  Co.  v.  Coopt-r.  120  Ind.  469,  22  N.  E. 
340.  A  coiuluctor,  who  is  infonned  of  the  diumess  of  vision  and  en- 
feebled toiulitioii  of  a  passenger,  should  use  such  care  as  the  passen- 
ger requires  to  prevent  injury.  Columbus,  C.  &  I.  C.  Ry.  Co.  v.  Pow- 
ell, 40  Ind.  37. 

9  Smith  V.  Packet  Co.,  86  N.  Y.  408,  affirming  46  N.  Y.  Super.  Ct.  86. 
§  108.     1  Hanks  v.  Railroad  Co.,  60  Mo.  App.  274.     A  street-railroad 

company  must  stop  its  cars  a  sufficient  length  of  time  to  enable  a 
passenger  to  alight  in  safety.     The  length  of  such  time  must  neces- 
(2G0) 


€h.   8)  DUTY    TO    PASSENGERS    UNDER    DISABILITY.  §    1U8 

firmity  of  a  female  passenger,  which  renders  it  nnsafe 
for  her  to  alight  without  the  aid  of  a  footstool,  the  fail- 
ure of  the  company  to  proyide  a  footstool,  as  was  its 
custom,  is  a  fact  from  which  a  jnrv  mav  infer  negli- 
gence." A  railroad  company,  howeyer,  is  under  no 
obligation  to  furnish  personal  assistance  to  an  iiilirm 
passenger  in  alighting,  if  its  train  hands  haye  no 
knowledge  of  the  infirmity,"  But  a  conductor  who 
knows  that  a  passenger  on  his  train  is  suffering  from  a 
disease  which  requires  her  to  haye  special  assistance 
in  getting  on  and  off  must  furnish  it.* 

sarily  depend  on  the  oiroumstanoes  of  <\'uli  cnse.  amonc:  which  are 
the  a^e  and  condition  of  the  passensor.  A  person  wlio  is  a  cripple, 
or  otherwise  feeble  and  infirm,  is  entitled  to  consideration  on  that 
account.  Colt  v.  Railroad  Co.,  33  N.  Y.  Super.  Ct.  IS!),  atlirnied  in  4!» 
N.  Y.  (171.  In  determining:  whether  a  train  stoi)ped  a  reasonable 
lenjirh  of  time  to  permit  a  female  passenger.  (!.">  ye;us  old.  and  weisli- 
ing  170  pounds,  to  alight,  the  .liu'.v  may  talie  into  consideration  her 
age.  sex,  and  physical  condition.  Iliclvman  v.  Railway  Co.,  1)1  3Io. 
433,  4  S.  W.  127.     See,  also,  ante,  §  66  et  seq. 

2  Madden  v.  Railroad  Co..  3r>  S.  C.  381.  14  S.  E.  71.3. 

3  Daniels  v.  Railroad  Co.,  96  Ga.  786,  22  S.  E.  5)56. 

4  Madden  v.  Railroad  Co..  41  S.  C.  440.  1!)  S.  E.  {)ri1.  and  20  S.  E. 
<)5.  A  passenger  was  taken  sick  during  his  journey,  and  I'cceivod 
.some  attention  from  the  train  hands.  The  train  stopped  at  his  des- 
tination for  two  niinulcs.  No  one  saw  tlie  siclv  passenger  alight,  but 
shortly  afterwards  lie  was  fomid  beside  the  track  near  llie  station 
l)latf()rni  so  severely  injured  by  the  train  tliat  he  died  soon  after- 
wards. Held,  that  it  i-ould  not  be  said,  as  matter  of  law.  that  tlie 
failure  of  tlie  train  hands  to  assist  liim  in  aligliting  was  nciiligence; 
and  that  tlie  finding  of  tlic  tri;il  judge,  trying  llie  cast'  witliout  a  jury, 
that  it  was  not,  could  not  be  set  .aside  on  appeal.  Hr.idy  v.  Railroad 
Co.,  162  Mass.  408,  38  X.  E.  710. 

(201) 


§     lOU  CARRIERS   OP  PASSENGERS.  (Ch.    8- 


§    109.      SAME    —   EJECTION    AND    CARRYING    PAST 

DESTINATION. 

Although  a  comniou  carrier  of  passengers  owes  obli- 
gations to  its  well  passengers,  as  well  as  to  those  who 
are  sick,  and  is  bound  to  protect  the  rights  of  both; 
and  although,  when  the  condition  of  one  passenger, 
from  sickness  or  otherwise,  is  such  as  to  be  inconsist- 
ent with  the  safety,  health,  or  even  comfort  of  his  fel- 
low passengers,  regard  for  the  rights  of  the  latter  will 
authorize  the  carrier  to  terminate  the  carriage,  by  ex- 
cluding him, — yet  this  right  cannot  be  exercised  arbi- 
trarily or  inhumanly,  or  without  due  care  and  provi- 
sion for  the  safety  and  well-being  of  the  ejected  passen- 
ger.'     The  duty  of  the  company  to  such  a  passenger 

§  109.  1  Conolly  v.  Railroad  Co.,  41  La.  Ann.  57,  5  South.  259,  and 
G  South.  52G.  In  this  case  it  was  held  that  a  passenger  stricken  witli 
apoplexy  while  riding  in  a  street  oar,  although  attended  with  severe 
vomiting,  to  the  inconvenience  and  great  discomfort  of  other  passen- 
gers, cannot  be  removed  while  in  a  speechless  and  helpless  condition, 
and  laid  in  the  open  sti-eet  on  a  bleak,  drizzling  December  day,  and 
there  abandoned,  with  no  effort  to  procure  him  attention,  without  a 
violation  by  the  carrier  of  its  duty  as  such,  aud  liability  for  resulting 
damage.  It  was  further  held  that  the  mistake  of  the  driver  in  sup- 
])osing  that  the  passenger  was  drunk,  when  the  latter  had  ridden  a 
considerable  distance  without  misbehavior,  and  had  been  guilty  of 
none,  except  the  vomiting  occasioned  by  his  illness,  cannot  excuse  the 
company.  The  court  said:  "It  should  need  no  parade  of  learned  au- 
thorities to  maintain  the  proposition  that  a  common  carrier  cannot 
treat  an  unfortunate  passenger  stricken  with  apoplexy  while  under 
its  charge,  in  the  manner  above  indicated,  without  a  breach  of  its 
plainest  obligations  of  its  contract  of  carriage.  If  there  were  any 
precedent  to  the  contrary,  humanity  would  revolt  at  it,  and  it  would 
be  one  more  honored  in  the  breach  than  in  the  observance."  In 
Lemont  v.  Railroad  Co.,  1  ?»Iaekey  (D.  C.)  180,  however,  it  was  held 
(2G2) 


Ch.  8)  DUTY    TO    PASSENGERS    UNDER    DISABILITY.  §    109 

does  not  end,  however,  with  his  removal  from  the  train, 
but  it  is  bound  to  the  exercise  of  reasonable  and  ordi- 
nary care  in  temporarily  providing  for  his  protection 
and  comfort.  But  it  performs  this  duty  to  a  passen- 
ger without  friends  or  money,  when  it  carefully  and 
prudently  removes  him  from  its  train,  and  promptly 
places  him  in  charge  of  the  overseer  of  the  poor.' 

that  a  conductor  of  a  street  car  may  remove  from  the  car  a  person 
■who  has  been  guilty  of  disorderly  and  annoying  conduct;  and  the  fact 
that  it  afterwards  appears  that  the  passenger  was  sicli  will  not  ren- 
der the  company  liable,  where  the  passenger  did  not  inform  the  con- 
ductor of  the  fact,  and  the  conductor  believed  him  to  be  drunk. 

2  Atchison.  T.  &  S.  F.  R.  Co.  v.  Weber.  33  Kan.  543,  6  Pac.  877. 
Where  a  passenger  on  a  train  breaks  out  with  eruptions,  and  the  best 
medical  advice  that  can  be  obtained  is  unable  to  disclose  whether  they 
proceed  from  smallpox,  and  the  prior  conduct  and  statements  of  tlie 
])assenger   warrant   a   well-grounded,    clear,    and    honest    belief  that 
smallpox  is  developing,  the  ofticers  of  the  train  are  justitied  in  eject- 
ing him,  Though  it  afterwards  turns  out  that  they  were  mistaken. 
But  they  must  eject  him  at  a  place  where  he  can  obtain  accommoda- 
tions and  medical  treatment.     Faddock  v.  Railroad  Co.,  37  Fed.  841. 
A  lunatic  was  traveling  with  his  father,  who  liad  paid  fare  for  botli. 
The  father  got  off  at  an  intei-mediate  station  for  refresliments,  and  on 
his   return  to  the  train  was   unable  to  find   the  lunatic,    who   had 
changed  his  seat.     The  conductor,  in  the  absence  of  the  father,  ap- 
plied to  the  lunatic  for  his  ticket,  not  knowing  him  to  be  insane,  or 
that  his  fare  had  been  paid.     Ou  refusal  of  the  lunatic  to  surrender 
his  ticket  or  pay  his  fare,  the  conductor  put  him  off  the  train  at 
another  station.     Held  that,  since  the  conductor  was  ignorant  of  the 
fact  of  insanity,  the  company  was  not  liable  for  the  death  of  the 
lunatic,  caused  by  being  nm  over  by  auotlicr  train.     Willi  tts  v.  Rail- 
road Co.,  14  Barb.  (N.  Y.)  585.     A  conductor   wlio,  in  accordance  witli 
the  request  of  a  disabled  passenger,  with  i)aralyz;ed  liands,  claiming 
to  liavo  a  ticket  in  his  pocki-t.  undertakes  to  search  for  the  ticket, 
should  do  so  properly,  and  in  good  faith  and  with  rea.sonable  diligence; 
but  only  so  far  as  the  passenger  liimself  asks.     If  the  passenger  lim- 
its his  request  to  a  .search  of  one  pocket,  Avhich  he  designates,  the  con- 

(2G3) 


§  109  CARRIERS  OF  PASSENGERS.  (Cll.  8 

Two  cases  from  Mississippi  ou  this  subject  serve  to 
show  how  the  facts  of  each  particular  case  control  the 
courts  in  their  announcement  of  general  principles. 
In  Sevier  v.  Vicksburg  «Jc  M.  E.  Co.  it  was  held  that, 
thouo-h  a  i)assenger  is  sick  and  drowsy  when  he  enters 
a  train,  and  informs  the  conductor  of  this  fact,  the  con- 
ductor is  not  bound  to  arouse  him  at  destination,  and 
his  promise  to  do  so  imposes  no  obligation  on  the  rail- 
road company,  and  does  not  render  it  liable  for  carry- 
ing him  four  miles  past  his  destination,  compelling 
him  to  walk  back  in  the  nighttime.^  In  Weightman  v. 
Louisville,  N.  O.  &  T.  Ey.  Co.  it  was  held  that  where  a 
passenger,  seriously  ill,  is  accepted  as  such,  with  full 
knowledge  of  the  conductor,  under  a  promise  that  the 
i'duductor  will  take  care  of  him,  and  assist  him  from 
the  train,  if  necessary,  the  company  is  liable  for  his 
death,  caused  by  being  carried  beyond  his  destination, 

diiftor  is  not  bound  to  soarcli  further,  and  may  eject  the  passenger 
for  refusal  to  pay  fare  after  giving  him  a  reasonable  time  to  search 
for  the  ticket.  Louisville,  N.  &  G.  S.  R.  Co.  v.  Fleming.  14  Lea  (Tenn.) 
12S,  150. 

:*  61  Miss.  8.  The  court  said:  "If  persons  siclc  or  under  any  dis- 
ability, which  renders  them  unable  to  conform  to  the  reasonable  regu- 
lations for  the  community  generally,  are  inconvenienced  by  tiieir  dis- 
ability, they  have  no  legal  cause  of  complaint  against  the  carrier,  who 
undertakes  to  carry  the  public  generally,  according  to  a  plan  adopted 
to  suit  persons  in  a  condition  to  travel,  and  not  designed  to  meet  the 
wants  of  those  not  In  such  condition.  *  *  *  Que  too  sick,  or  from 
any  cause  not  able  to  do  as  travelers  usually  do  in  conforming  to  the 
usage  in  running  trains  for  the  traveling  public,  should  avoid  theui, 
or  secure  the  assistance  necessary  to  enable  them  to  accomplish  what 
is  required  of  passengers  generally.  Cairlers  are  not  required  to  adapt 
their  methods  to  the  circumstances  of  those  not  in  condition  to  com- 
lily  with  the  requirements  made  of  travelers  generally," 
(2G4) 


Ch.  8)  DUTY    TO    PASSENGERS    UNDER    DISABILITY.  §    110 

and  put  off  at  night  at  a  small  way  station,  where  he 
remained  without  care  and  attention  for  40  hours.* 


§  110.     CHILDREN 

The  cases  all  recojjnize  the  rule  that  children  of 
tender  years  are  not  to  be  treated  as  persons  of  mature 
years.  This  is  a  reasonable  and  humane  rule,  and  any 
other  would  be  a  cruel  reproach  to  the  law.^  A  com- 
mon carrier  of  passengers  for  hire  is  required  to  exer- 
cise the  greatest  care  and  precaution  against  the  occur- 
rence of  accidents,  and  to  provide  cars  which  will  be 
safe,  not  only  for  the  transportation  of  adults,  but  of 
infants  as  well.^  If,  on  account  of  a  passenger's  youth 
and  inexperience,  he  is  incapable  of  taking  proper 
care  of  himself,  the  carrier  is  bound  to  exercise  the 
highest  care  and  vigilance  necessary  and  proper  to  se- 

4  70  Miss.  .563,  12  South.  .')S6.  In  this  easo  the  court  said:  "That 
the  wanton,  feckless,  inhuman  conduct  of  the  defendant  in  jiuttinu-  an 
ahnost  dying  man  from  its  train,  under  the  revolting  circumstances  set 
out  in  the  declaration  in  this  case,  creates  liability  on  the  wrongdoer's 
part,  we  do  not  hesitate  to  affirm.  It  was  the  wanton  exi)osare  to 
Almost  certain  deatli  by  the  railroad  company  of  one  not  a  trespasser". 
— a  passenger,  to  whom  it  owed  a  duty;  at  least  the  duty  which  com- 
mon humanity  proclaims,  and  which  the  general  law  of  civilized 
C'hristendom  echoes,  not  to  wantonly  or  recklessly  injiu'e  another. 
Trespa.s.sers  on  trains  and  tracks,  wrongdoers  and  swin<lling  dead 
beats,  may  not  be  willfully  or  wantoidy  injured,  or  subjected  to  im- 
minent risks  of  deadly  peril.  Tliis  humane  doctrine  is  imbedded  in 
<iur  laws;  it  is  rooted  in  all  laws  of  every  enlightened  kingdom  or 
<(>mmonwealth  under  the  wide  circuit  of  the  sun." 

§  110.  1  Indianapolis.  V.  A:  C.  Ry.  Co.  v.  IMIzi-r.  109  Ind.  179,  6  N. 
E.  310,  and  10  N.  E.  7<>.  As  ro  the  carrier's  negligence  in  permitting 
children  to  ride  on  street-car  jjlaifonus,  see  ante,  §  85. 

2  Metropolitan  R.  Co.  v.  Falvey,  ■"')  App.  D.  C.  176. 

(2G5) 


§  110  CARRIERS  OF  PASSENGERS.  (Ch.  S 

cure  bis  safety.^  Thus  a  railroad  company  is  bound 
to  jiive  an  11  year  old  boy  passenger,  traveling  unat- 
tended, such  care  and  attention  as  his  safety  reason- 
ably requires  or  demands,  in  view  of  his  tender  years 
and  presumable  lack  of  experience,  and  much  greater 
care  than  to  an  adult  passenger.*  So,  where  a  7  year 
old  boy,  without  fault  of  his  parents,  wanders  to  a 
railroad  station,  and  get?  on  a  passenger  train,  it  is- 
negligence  for  the  conductor  to  expel  him  from  the 
train  at  the  next  station,  miles  from  home,  without 
asking  any  one  to  look  after  his  safety,  or  give  him  at- 
tention; and  it  is  likewise  negligence  for  the  employes 
of  another  train,  who  discover  him  on  the  track  a 
mile  and  a  half  from  the  station,  to  fail  to  stop  the 
train,  when  it  is  within  their  power  to  do  so,  before  it 
runs  upon  the  child.'      But  the  mere  fact  that  a  child 

3  Philadelphia  City  Pass.  Ry.  Co.  v.  Hassard,  75  Pa.  St.  367;  West 
Philadelphia  Pass.  Ky.  Co.  v.  (iallaslier,  lUS  Pa.  St.  .52-1. 

4  Hemmiugway  v.  Railway  Co.,  72  Wis.  42,  37  N.  W.  804.  In  thi.^ 
case  it  was  held  that  the  failuve  of  a  conductor  of  a  freight  train  ti> 
notify  the  boy  that  the  train  will  not  stop  at  the  station  platform, 
but  at  some  distance  beyond,  warrants  the  jury  in  tinding  that  he  did 
not  exercise  proper  care  and  caution,  which  will  render  the  company- 
liable  for  injuries  sustained  by  the  boy  in  jumping  from  the  train  to 
The  platform,  under  the  belief  that  he  will  be  carried  by  the  station. 

5  Indianapolis.  P.  &  C.  Ry.  Co.  v.  Pitzer,  109  Ind.  179,  6  N.  E.  310. 
and  10  X.  E.  70.  In  the  case  of  a  boy  nine  years  old,  the  duty  of  the 
carrier  towards  him  while  alighting  must  be  performed  with  due  re- 
gard to  his  apparent  condition.  Ridcnhour  v.  Railway  Co.,  102  Mo. 
270,  13  S.  W.  880,  and  14  S.  W.  760.  Wliere  it  appears  that  passen- 
gers on  an  elevator  are  liable  to  lose  their  balance  on  its  starting,  and 
that  the  elevator  car  is  not  provided  with  a  door,  it  is  a  question  for 
the  jiu'y  whether  the  operator  is  negligent  in  starting  the  car  witliouc 
instructing  a  nine  year  old  child,  his  only  passenger,  as  to  how  she 
can  protect  herself  from  falling,  though  ordinarily  it  woukl  not  be  hi* 

(266) 


Ch.   8)  DUTY    TO    PASSENGERS    UNDER    DISABILITY.  §110" 

of  tender  years  is  permitted  by  the  conductor  to  enter 
a  passenger  train  at  a  regular  station  is  not,  of  itself, 
sufficient  to  charge  the  company  with  negligence.  No 
principle  exists  that  requires  railroad  companies  tO' 
keep  watch  to  prevent  persons,  young  or  old,  from  en- 
tering their  passenger  trains  at  regular  stations.^  So 
a  carrier  of  passengers  will  not  be  held  responsible  for 
injury  to  a  boy  passenger  caused  by  his  own  impru- 
dence, merely  because  of  his  age, — nearly  10  years.' 

In  the  case  of  children  of  tender  years  in  the  care  of 
parents  on  a  train,  the  carrier  has  a  right  to  rely  and 
act  on  the  presumption  that  the  pai'ent  will  take  such 
care  of  them  as  the  natural  love  of  a  prudent  father  or 
mother  would  prompt  them  to  exercise  under  such  cir- 
cumstances. But  train  hands,  who  see  that  children 
so  traveling  are  or  will  be  exposed  to  danger,  or,  see- 
ing them,  and  exercisi  ag  reasonable  care  and  diligence, 
ought  to  know  that  they  are  or  will  be  so  exposed, 
liave  no  right  to  act  upon  such  a  presumption,  and  it  is 
their  duty  to  use  all  reasonable  and  practicable  care 
and  diligence  to  avoid  the  danger  and  avert  the  in- 
jury.^ But  where  a  four  year  old  child,  a  passenger 
on  a  street  car,  accompanied  by  a  person  of  suflicieut 
age  and  discretion  to  take  care  of  it,  is  put  ofe  the  car 
by  the  conductor  at  the  proper  place,  and  the  person 

duty  to  do  so,     McGrell  v.  Office  Building  Co.,  90  Hun,  30,  35  N.  Y.. 
Supp.  599. 

6  Indianapolis,  P.  &  C.  Ry.  Co.  v.  Pitzer,  109  Ind.  179,  6  N.  E.  310,. 

and  10  N.  E.  70. 

7  Cronan  v.  Railroad  Co.  (La.)  21  Sonth.  163. 

8  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Rexroad,  59  Ark.  180,  26  S.  W, 

10.37. 

(267) 


§  111  CARRIERS  OF  PASSENGERS.  (Ch.  8 

having  charge  of  the  child  follows  it,  and  both  reach 
the  street  in  safety,  and  are  waiting  for  the  passing 
of  a  car  on  a  parallel  track,  the  railway  company  is 
not  responsible  if  the  child  runs  towards  the  passing 
car,  strikes  it,  and  is  thrown  down  and  injured.* 

§  111.     INTOXICATED  PASSENGERS. 

Where  the  servants  of  a  railroad  company  know  that 
a  passenger  in  a  state  of  helpless  intoxication  is  in  a 
position  of  danger  on  a  moving  train,  their  failure  to 
take  him  to  a  place  of  safety  is  negligence  which  ren- 
ders the  company  liable  for  his  death. ^  But  where  a 
passenger's  intoxication  is  not  apparent,  and  the  com- 
pany's employes  do  not  in  fact  know  of  it,  they  are 
bound  to  use  towards  him  only  the  care  and  prudence 
that  a  sober  man  would  i-equire  for  his  safety." 
Where  a  passenger,  partially  intoxicated,  is  riding  on 
the  platform  of  the  car,  it  is  the  duty  of  the  railroad 
<'(mipauy,  after  the  conductor  has  notice  of  his  condi- 
tion and  exposure  to  danger,  to  use  the  ordinary  pre- 
cautions, such  as  calling  his  attention  to  the  danger, 
and  the  rules  of  the  company  forbidding  such  expo- 
sure, and  inviting  him  to  go  inside  the  car.  But,  if  the 
passenger  fails  to  heed  the  warning  or  accept  the  in- 
vitation, the  conductor  is  not  required  to  use  physical 
force  to  compel  him  to  go  inside,  or  put  him  off  the 
train;  and,  where  the  passenger  afterwards,  without 
the  conductor's  knowledge,  goes  on  the  car  steps,  the 

9  Schneidau  v.  Railroad  Co.,  48  La.  Ann.  866,  19  South. '918. 
§  111.      1  St.  Louis.  A.  &  T.  H.  R.  Co.  v.  Carr.  47  111.  App.  353. 
2  Strand  v.  Railway  Co.,  67  Mich.  380,  34  N.  W.  712. 
1208) 


Ch.   8)  DUTV    TO    PASSENGERS    UNDER    DISABILITY.  §    112 

company  is  not  liable  for  injuries  sustained  in  falling, 
off,  owing  to  the  usual  movement  of  the  train.^  So 
where  an  intoxicated  passenger  reaches  his  destina- 
tion, voluntarily  alights  from  his  train  at  the  station, 
makes  arrangements  for  his  baggage,  and  leaves  the 
company's  premises,  and  thereby  ends  all  further  obli- 
gations of  the  company  to  him,  the  company  owes  him 
no  further  duty  as  passenger,  and  is  not  responsible 
for  his  death,  caused  by  his  wandering  back  to  the  de- 
pot during  the  night,  and  lying  down  on  the  track,  and 
falling  asleep,  where  he  is  run  over  by  a  train.* 

§   112.     SAME— EJECTION. 

While  the  right  generally  of  railroad  companies  to 
put  off  their  trains  persons  who  refuse  to  pay  their 
fare  is  unquestionable,'  yet  it  does  not  follow  that  this 
riaht  mav  be  exercised  in  such  a  manner,  under  such 
circumstances,  or  against  a  person  in  such  mental  or 
physical  condition,  as  that  death  or  serious  bodily 
harm  will  necessarily  or  even  probably  result.^  If  a 
passenger  on  a  train  is  intoxicated  to  a  degree  to  ren- 
der him  unconscious  of  danger, — unable  to  take  in  his 
position,  surroundings,  and  perils,  and  his  duty  to 
avoid  them, — or  he  does  not  possess  the  power  of  loco- 
motion, and  is  put  off  the  train  by  a  conductor  on  ac- 
count of  his  misconduct,  and  the  place  where  he  is  put 
off  and  left  is  dangerous  to  one  in  his  condition,  and 

8  Fisher  v.  Railway  Co.,  39  W.  Va.  366,  19  S.  E.  578. 

*  lUtzwadosfslde  v.  Railway  Co..  1  Tex.  Civ.  App.  -187.  'J(t  S.  \V.  ST2. 

§  112.     1  See  post,  e.  24. 

2  Louisville.  C.  iV:  S.   R.  Co.  v.  Sullivan,  SI  Ky.  624.  / 


§  112  CARRIERS  OF  PASSENGERS.  (Ch.  8 

these  facts  are  known  to  the  conductor,  the  latter  is 
guilty  of  reckless  and  wanton  negligence,  rendering 
the  company  in  whose  employment  he  is  liable  for 
damages  resulting  from  his  negligence,  although  the 
person  ejected  and  injured  might  have  been  legally 
ejected  in  a  proper  manner,  and  at  a  proper  place. ^ 
Hence,  where  a  conductor,  with  knowledge  of  the 
facts,  ejects  a  helplessh'  intoxicated  passenger  be- 
tween stations,  on  a  bitterly  cold  day,  for  refusal  to 
l)iiy  fare,  the  company  is  liable  for  injuries  caused  by 
freezing  while  he  was  lying  helplessly  in  the  snow. 
And  if  a  passenger  is  so  intoxicated  that  he  is  uncon- 
scious of  danger,  cannot  grasp  his  position  and  sur- 
roundings and  his  duty  to  avoid  danger  from  passing 
trains,  or  does  not  possess  the  power  of  locomotion, 
the  conductor,  who  knows  the  facts,  is  guilty  of  neg- 
ligence in  putting  him  off  in  a  deep  cut,  where  it  is 
difficult  to  avoid  passing  trains;  and  the  company  is 
liable  for  his  death  in  the  cut,  caused  by  being  run  over 
by  another  train.* 

But  where  the  place  of  ejection  is  not  such  as  to 
make  it  difficult  to  avoid  passing  trains,  and  the  weath- 
er is  not  inclement,  the  company  is  not  required  to  car- 
ry an  intoxicated  passenger,  whose  conduct  is  offen- 
sive and  dangerous,  to  the  next  station  before  putting 
him  off.  All  that  is  required  of  the  company  is  to  use 
no  more  force  than  is  reasonably  necessary  for  this 
purpose,  and  to  place  him  off  the  track,  out  of  the  way 
of  that  train;  and  the  company,  having  exercised  prop- 

8  Louisville  &  N,  R.  Co.  v.  Johnson,  lOS  Ala.  62,  19  South.  51. 
^  Louisville,  C.  &  S.  R.  Co.  v.  Sullivan,  81  Ky.  624. 
(270) 


Ch.   8)  DUTY    TO    PASSENGERS    UNDER    DISABIIJTV.  §    112 

^r  care  in  putting  Mm  off,  is  not  liable  by  reason  of 
the  fact  that  he  went  upon  the  track,  and  was  run  over 
by  another  train.  ^  And  where  an  intoxicated  passen- 
ger is  removed  from  the  car  at  a  station,  and  conducted 
15  feet  from  the  track  bv  the  head  brakeman,  the  com- 
pany  is  not  liable  for  his  death,  caused  by  his  lying 
down  on  the  track,  and  being  run  over  by  the  train,  the 
emploves  on  which  exercised  ordinarv  care.°  So  a 
railroad  conductor  is  not  negligent  in  leading  an  intox- 
icated passenger  from  the  car,  and  placing  him  about 
two  feet  from  the  edge  of  the  station  platform,  and 
leaning  him  against  some  trunks;  and  the  railroad 
company  is  not  responsible  for  his  death,  caused  by  his 
losing  his  balance,  and  falling  from  the  platform, 
though,  if  he  had  been  placed  further  from  the  edge  of 
the  platform,  no  serious  accident  would'  have  hap- 
2)ened/ 

0  Johnson  v.  Railroad  Co.,  104  Ala.  241,  16  South.  75;  Louisville  & 
A.  R.  Co.  V.  Ellis'  Adm'x  (Kj-.)  BO  S.  W.  979;  Louisville  &  N.  R.  Co. 
T.  Logan,  88  Ky.  232,  10  S.  W.  655.  A  railroad  company  is  not  guilty 
of  any  wrong  in  putting  off,  between  stations,  a  passenger  who  is 
lighting  di-unk,  has  engaged  in  a  serious  conflict  with  a  brakeman  and 
with  another  passenger,  and  who  is  suffering  from  no  physical  pa- 
ralysis, so  as  to  render  it  liable  for  his  death  caused  by  being  run  over 
by  a  train  some  time  during  the  night.  Railway  Co.  v.  "N'alleley,  32 
Ohio  St.  345.  Where  a  drunken  passenger  has  been  carried  past  his 
<lestination  owing  to  his  own  fault,  and  refuses  to  pay  fare  to  the 
next  station,  the  conductor  is  not  negligent  in  putting  him  off  the 
rrain,  and  setting  him  down  in  the  grass  a  few  feet  from  the  track; 
4ind  the  company  is  not  liable  for  his  death,  where  he  afterwards  lies 
down  on  the  track,  and  is  run  over  by  a  freight  train,  the  employes 
on  which  did  everything  in  their  power  to  stop  the  train  after  discov- 
ering him.     McClelland  v.  Railroad  Co.,  94  Ind.  270. 

6  Missouri  Pac.  Ry.  Co.  v.  Evans,  71  Tex.  3G1,  9  S.  W.  325. 

T  Dechert  v.  Railway  Co.,  17  111.  App.  74. 

(271) 


§112  CARRIERS   OF   PASSENGERS.  (Ch.    S 

To  render  a  railroad  company  liable  for  the  deatli, 
by  exposure,  of  an  intoxicated  passenger,  ejected  from 
the  train  near  a  dwelling  house,  for  nonpayment  of 
fare,  it  must  appear  that  the  conductor  had  reasonable 
ground  to  believe  that  the  passenger  was  so  greatly 
under  the  influence  of  liquor  as  to  be  unable  to  find  his 
way,  or  to  walk  to  the  nearest  house  or  station.  And  a 
somewhat  intoxicated  passenger,  who  gets  off  safely, 
without  assistance,  when  told  that  he  must  pay  his 
fare  or  leave  the  train,  and  whom  the  conductor  has 
seen  a  few  minutes  before  in  an  eating  house,  demand- 
ing food,  and  acting  somewhat  boisterously,  may  be 
reasonably  supposed  to  be  capable  of  reaching  a  place 
of  safety,  where  he  is  left  in  the  evening,  when  it  is  nei- 
ther raining  nor  freezing,  within  200  yards  of  a  dwell- 
ing house,  and  not  far  from  the  railroad  station.* 

8  Roseman  v.  Railroad  Co..  112  X.  C.  700.  IG  S.  E.  760. 
(272) 


Ch.   9)  PK(JXIMATE    CAUSE.  §    113 

CHAPTER  IX. 

PROXIMATE  CAUSE. 

$  113.  Definition  and  General  Principles. 

114.  Province  of  Court  and  Jury. 

115.  Examples  of  Proximate  Cause. 

116.  Examples  of  Remote  Cause. 

117.  Intervening  Cause. 

118.  Combined  and  Concurring  Causes. 

119.  Particular  Injuries— Distinction  between  Actions  on  Contract 

and  in  Tort. 

120.  Same— Exposure  from  Failure  to  Carry  Passenger  to  Destina- 

tion. 

121.  Same— Dangers  Encountered  from  Failure  to  Carry  to  Destina- 

tion. 

122.  Same— Unusual  Consequenceg  of  Personal  Injuries. 

123.  Same— Predisposition  to  Disease. 

124.  Same— Pecuniary  Loss. 

§  113.     DEFINITION  AND  GENERAL  PRINCIPLES. 

For  purposes  of  civil  liability  in  actions  of  tort, 
defendant's  conduct  is  the  proximate  cause  of 
plaintiff's  injuries  when  it  produced  them  as  a 
natural  and  probable  consequence,  in  the  esti- 
mation of  a  man  of  average  competence  and 
knovtrledge,  placed  in  defendant's  situation,  and 
having  like  opportunities  of  observation. 

In  actions  of  tort,  and  also  in  actions  for  breach 
of  contract,  phiintiff  must  show,  not  only  that  de- 
fendant's conduct  was  wrongful,  but  also  that  it 
was  the  proximate  cause  of  the  injnries  for  which  he 
sues.     This  principle  was  long  ago  stated  by  Lord  Ba- 

V.  1  FET.CAR.PAS. 16  (273) 


§  113  CARRIERS  OF  PASSENGERS.  (Ch.  9 

con.  "It  were  infinite  for  the  law  to  judge  of  cause  of 
causes,  and  their  impulsions  one  of  another;  therefore 
it  conteuteth  itself  with  the  immediate  cause,  and 
judgeth  of  acts  by  that,  without  looking  to  any  further 
degree."  This  general  principle  is  obviously  just.  To 
illustrate  from  the  decided  cases:  A  passenger  stand- 
ing on  the  car  platform  as  the  train  is  approaching  his 
station  cannot  recover  for  injuries  sustained  in  being 
thrown  from  the  car  platform,  on  proof  that  the  engi- 
neer failed  to  ring  the  bell  when  approaching  the  sta- 
tion, as  required  b}'  statute.  There  is  no  relation  of 
cause  and  effect  between  the  wrongful  act  and  the  in- 
jury.^ So,  on  the  other  hand,  where  the  axle  of  a  car 
breaks,  the  train  is  derailed,  and  the  passenger  is  in- 
jured, no  doubt  can  be  entertained  that  the  breaking  of 
the  axle  is  the  proximate  cause  of  the  injury.  But  in 
a  great  many  cases  the  task  of  distinguishing  between 
remote  and  proximate  cause  is  like  having  to  draw  a 
line  between  night  and  day;  there  is  a  great  duration 
of  twilight  when  it  is  neither  night  nor  day."  No  per- 
fect or  general  definition  of  the  term  "proximate 
cause,"  which  will  enable  courts  and  juries  to  draw 
that  line,  has  ever  been  given,  and  it  is  doubtful  wheth- 
'  er  the  term  is  capable  of  exact  definition.  In  dealing 
with  this  subject  of  proximate  cause,  it  should  be  borne 
in  mind  that  while  the  law  to  be  administered  by  the 
courts  should  not  be  a  mere  reflex  of  uneducated  pub- 
lic opinion,  at  the  same  time  it  should  be  the  expres- 

§  113.    1  Alabama  G.  S.  R.  Co.  v.  Hawk,  72  Ala.  112. 
2  Bramwell,  B.,  quoted  by  Blackburn,  J.,  in  Hobbs  v.  Railway  Co., 
L.  R.  10  Q.  B.  111. 
(274) 


Cll.   9)  PUOXIMATE    CAUSE.  §113 

sion  of  a  masculine  common  sense,  and  its  decisions 
should  not  be  founded  on  distinctions  so  subtle  that 
they  might  have  afforded  fitting-  topics  to  the  school- 
men.^ Hence,  in  whatever  form  the  definition  of  prox- 
imate cause  may  be  stated,  it  should  be  taken,  not  so 
much  as  a  logical  definition,  as  a  guide  to  the  exercise 
of  common  sense.  "The  laAvyer  cannot  afford  to  ad- 
venture himself  witJi  philosophers  in  the  logical  and 
metaphysical  controversies  of  cause."  * 

As  to  the  definition  of  proximate  cause  given  at  the 
beginning  of  this  chai3ter,  it  is  conceded  that  it  fully 
applies  only  to  injuries  not  intended  by  defendant  If 
it  can  be  shown  that  the  injuries  inflicted  were  intend- 
ed or  actually  foreseen  by  defendant,  then  the  question 
of  proximate  and  remote  cause  becomes  immaterial. 
"That  which  a  man  intends  and  foresees  is  to  him,  at 
all  events,  natural  and  probable."  ® 

Turning  now  to  the  definitions  given  by  the  courts, 
we  find  that  they  agree  substantially  with  the  one 
above  laid  down.  "A  long  series  of  judicial  decisions 
has  defined  proximate  or  immediate  and  direct  dam- 
ages to  be  the  ordinary  and  natural  results  of  negli- 
gence, such  as  are  usual,  and  as  therefore  might  have 
been  expected;  and  this  includes  in  the  category  of  re- 

8  Fent  V.  Kailwav  Co.,  59  111.  349.  The  law  regards  practical  dis- 
tinctions,  rather  than  these  which  are  merely  theoretical;  and  prac- 
tically, where  a  man  cuts  off  the  hose  through  wliicli  firemen  are 
throwing  a  stream  upon  a  burning  building,  and  thereupon  tlie  build- 
ing is  consumed  for  want  of  water  to  extinguish  it,  his  act  is  to  be 
regarded  as  the  du-ect  and  efficient  cause  of  the  injury.  Metallic 
Compression  Casting  Co.  v.  Fitcliburg  R.  Co.,  109  Mass.  277. 

4  Pol.  Torts  (Webb's  Ed.)  p.  :J9. 

6  Id.  p.  32. 

(275) 


§     113  CARRIERS   OF   PASSENGERS.  (Ch.    d 

mote  damages  such  as  are  the  results  of  an  accidental 
or  unusual  couibinatiou  of  circumstances,  which  would 
not  reasonably  be  anticipated,  and  over  which  the  neg- 
ligent  party  has  no  control."  '  "It  is  generally  held 
that,  in  order  to  warrant  a  finding  that  negligence,  or 
an  act  not  amounting  to  wanton  wrong,  is  the  proxi- 
mate cause  of  an  injury,  it  must  appear  that  the  injury 
was  the  natural  and  probable  consequence  of  the  neg- 
ligent or  wrongful  act,  and  that  it  ought  to  have  been 
foreseen  in  the  light  of  attending  circumstances."  ^ 
In  New  Jersey  the  rule  is  as  follows:     "It  is  not  nec- 

«  Heury  v.  Railroad  Co..  ."tO  Cal.  183. 

7  Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  94  U.  S.  469.  To  recover 
damages  for  a  tort,  tliey  must  be  naturally  and  proximately  connected 
with  and  flow  from  it;  tliey  must  be  such  as  miglit  be  within  the 
contemplation  of  the  parties  as  a  natural  consequence  of  the  wrong- 
ful act,  as  distinguislied  from  a  merely  accidental  result.  Smith  v. 
Bolles,  132  U.  S.  12.">,  10  Sup.  Ct.  39.  "Proximate  damages  are  the 
ordinaiy  and  natural  results  of  the  particular  negligence,  and  there- 
fore such  as  might  have  been  expected."  Jackson  v.  Railway,  la 
Lea  (Tenn.)  491.  "The  test  for  drawing  the  distinction  between  proxi- 
mate and  remote  cause,  in  reference  to  tlie  consequences  of  negligence, 
is  the  consideration  whether  the  chain  of  events  was  so  linked  together 
as  a  natural  whole  that  the  final  result  was  the  natural  and  probable 
con.sequence  of  the  wrongdoer's  act."  Havei-ly  v.  Railroad  Co.,  135 
Pa.  St.  .50,  19  Atl.  1013;  Hoag  v.  Railroad  Co..  So  Pa.  St.  293.  "Proxi- 
mate cause"  literally  means  the  cause  nearest  to  the  effect  produced, 
but,  in  legal  terminology,  the  tenns  are  not  confined  to  their  literal 
meaning.  Though  a  negligent  act  or  omission  be  removed  from  the 
injury  by  intermediate  causes  and  effects,  yet,  if  the  guilty  party 
ought  reasonably  to  have  foreseen  the  ultimate  consequences,  such 
negligence  is  deemed  in  law  the  pr6ximate  cause  of  the  injurious  effect. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Rowland  (Tex.  Sup.)  38  S.  W.  757.  "A 
person  is  expected  to  anticipate  and  guard  against  all  reasonable  con- 
sequences, but  he  is  not,  by  the  law  of  England,  expected  to  antici- 
pate and  guard  against  that  which  no  reasonable  man  would  expect 
(27G) 


<;h.  9)  PROXIMATE    CAUSE.  §    113 

essary  that  the  wrongdoer  should  be  able  to  anticipate 
The  very  occurrences  which  resulted  from  his  laches; 
it  is  enough  if,  after  they  have  happened,  they  are  seen 
to  have  followed  from  his  misconduct  in  the  natural 
course  of  things,  and  within  the  reasonable  range  of 
probability;  and  it  must  be  left  to  the  jury  to  deter- 
mine, according  to  the  circumstances,  whether  the 
facts  fit  the  standard  of  naturalness."  '  In  actions  for 
injuries  to  passengers,  the  following  general  rules  have 
been  laid  down:  "If  the  injury  to  a  passenger  result- 
ed from  the  negligent  act  of  defendant,  that  act  will 
be  deemed  the  proximate  cause,  unless  the  consequen- 
ces were  so  unnatural  or  unusual  that  they  could  not 
have  been  foreseen  and  provided  against  by  the  highest 
practicable  care."  ^  "^Yhen  the  negligence  of  the  car- 
rier is  established,  and  is  of  a  character  greatly  to  mul- 
tiply the  chances  of  accident  which  happened,  and  nat- 
urally leading  to  its  occurrence,  and  when  the  evidence 
tends  to  connect  the  accident  with  the  negligence,  the 
mere  possibility  that  the  accident  might  have  hap- 
pened, even  without  the  negligence,  will  not  relieve  the 
carrier  from  liability.  Courts  consider  the  natural 
and  ordinary  connection  of  events,  and  will  not  indulge 
in  fanciful  suppositions."  ^^ 

to  occur."  Greenland  v.  Chaplin.  T)  Exch..  at  page  248.  Sec,  also, 
ante.  §  12,  as  to  the  carrier's  lialiilily  tVu-  unforesoen  and  nui'Xix'cteil 
accidents. 

8  McCann  v.  Railway  Co.  (N.  .J.  Err.  &  App.)  34  All.  1052. 

»  Louisville,  X.  A.  &  C.  Ry.  Co.  v.  I.ucas,  119  Ind.  :>s:i,  21  N.  E.  968. 

10  Reynolds  v.  Railway  Co.,  37  La.  Ann.  694.  The  nej^liReuce  of  a 
common  carrier  will  be  deemed  the  proximate  cause  of  an  injiwy  to  a 
passenger,  whenever  the  accident  might  reasonably  have  been  fore- 
seen by  competent  and  experienced  men,  under  all  the  circumstances, 

(277) 


§114  CARRIERS   OF   PASSENGERS.  (Ch.    9 

In  conclusion  it  should  be  noted  that  the  cases  on 
the  subject  of  proximate  cause  are  divisible  into  two 
classes.  In  the  first  class  the  question  is  whether  or 
not  plaintiff  has  anvvcause  of  action  whatever  for  de- 
fendant's wrongful  act.  In  the  second  class  the  ques- 
tion is,  conceding  that  he  has  a  cause  of  action,  wheth- 
er or  not  a  particular  injury  which  he  has  sustained  is 
too  remote  to  become  an  element  of  damages.  The 
general  principles  governing  these  two  classes  are  the 
same,  but  they  will  be  kept  distinct,  as  far  as  possible^ 
in  the  following  discussion,  which,  of  course,  deals 
primarily  with  actions  for  injuries  to  passengers. 

§  114.  PROVINCE  OF  COURT  AND  JURY. 

Whenever,  on  either  the  question  of  negligence  or 
proximate  cause,  there  may  be  reasonable  dif- 
ferences of  opinion  as  to  the  inferences  or  con- 
clusions which  may  fairly  be  drawn  from  the 
undisputed  facts,  the  question  is  one  of  fact  to 
be  submitted  to  the  jury;  but,  w^hen  there  is  no 
room  for  such  difference  of  opinion,  the  ques- 
tion is  one  of  law  for  the  court. 

The  foregoing  is  believed  to  be  the  true  rule  in  the 
United  States,  and  the  test  as  to  the  relative  functions 
of  the  court  and  jury  on  the  question  of  proximate  cause 
is  the  same  as  on  the  question  of  negligence.  Where 
the  connection  between  the  act  of  negligence  and  the 
damages  is  so  remote  as  to  leave  no  ground  for  differ- 
ence of  opinion  between  fair-minded  men  as  to  wheth- 

■wliile  in  the  exorcise  of  extraoidiuary  care  and  prudence.     Davis  v. 
Railway  Co.  (Wis.)  67  N.  W.  1132. 
(278) 


Ch.    9)  PROXIMATE    CAUSE.  §    114 

er  the  negligence  Avas  the  natural  cause  of  the  dam- 
age, the  judge  should  decide  it,  and  should  not  submit 
it  to  the  jury;  but  where  a  substantial  doubt  arises  as 
to  whether  the  damage  was  the  natural  and  proximate, 
or  a  speculative  and  remote,  result  of  the  negligence, 
the  question  should  be  submitted  to  the  jury  under 
proper  instructions.^  Thus,  where  a  pas^senger  is 
wrongfully  ejected  in  the  nighttime  i«  a  railroad  yard 
with  which  he  is  entirely  unacquainted,  and  while  at- 
temjjting  to  find  his  way  out  of  the  yard,  and  just  as  he 
has  crossed  a  track,  is  struck  a  blow  in  the  rear,  and 
rendered  unconscious,  the  question  whether  his  injury 
is  the  proximate  result  of  the  defendant's  wrongful  act 
is  for  the  jury.-     In  some  cases,  however,  it  is  said  that 

§  114.     1  Dunn  v.  Railway  Co.,  21  Mo.  App.  188,  198;    Pittsburgh. 
C.  C.  &  St.  L.  Ry.  Co.  v.  Klitcli.  11  Iml.  App.  290,  295,  37  N.  E.  5G0. 

2  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Rosenzweig,  113  Pa.  St.  519,  511. 
6  Atl.  545.  A  female  passenger,  while  alighting  from  a  street  car. 
"was  thrown  against  the  railing,  hurting  her  right  arm  and  left  breasr. 
From  that  time  on,  the  breast  became  sore  Avhere  struck,  and  a  can 
rer  shortly  afterwards  developed,  ultimately  necessitating  the  removal 
of  the  entire  breast,  without  success  in  extirpating  the  roots  of  the 
disease;  the  cancer  being  pronounced  incurabl(\  All  the  medical  ex- 
perts testified  that  the  blow  was  sufficient  to  have  causetl  the  devel- 
opment of  the  cancer.  Held,  that  it  was  a  question  of  fact  for  the 
jury  Avhether  the  cancer  was  caused  by  the  blow,  and  their  finding 
that  it  Avas  could  not  be  disturbed  by  the  court.  Baltimore  City  Pass. 
Ry.  Co.  V.  Kemp,  Gl  Md.  74.  "Where  an  intoxicated  passenger  is 
wrongfully  put  off  a  train,  and  is  killed  by  another  train  wiiile  walk- 
ing along  the  track  to  his  destination,  the  iiucstiou  wlicilicr  liis  re- 
moval was  the  proximate  caus«>  of  his  death  is  for  the  jury,  and  it  is 
eiTor  for  tiie  court  to  nonsuit  plaintiff.  <;uy  v.  Railroad  Co.,  30  Ilun. 
399.  It  is  for  the  jury  to  determine  whether  the  negligence  of  a  rail- 
road (■onii)any  in  failing  to  warn  passengers  that  the  train  Is  about 
to  start  is  tlie  proximate  cause  of  an  iajiu'y  to  a  passenger,  who  \in- 

(27i>) 


§115  CARRIERS   OF   PASSENGERS.  (Ch.    9 

while  it  is  undoubtedly  true,  as  a  general  proposition, 
that  the  question  of  proximate  cause  is  for  the  jury, 
yet  where  there  are  no  disputed  facts  the  court  may  de- 
termine it.^ 

]u  Eniiland,  however,  the  rule  seems  to  be  that  the 
question  of  remote  and  proximate  cause  is  for  the  court 
in  all  cases.  This  certainly  appears  to  be  the  rule  in 
actions  for  breach  of  contract.  In  McMahon  v.  Field,* 
Brett,  L.  J.,  said:  "The  question  of  the  remoteness  of 
damages  has  become  a  difficult  one,  since,  according  to 
the  case  of  Hadley  v.  Baxendale,  9  Exch.  341,  it  is  for 
the  court  and  not  the  jury  to  determine  whether  the 
case  comes  within  am^  of  the  following  rules,  namely 
— First,  whether  the  damage  is  the  necessary  conse- 
quence of  the  breach;  secondly,  whether  it  is  the  prob- 
able consequence;  and,  thirdly,  whether  it  was  in  the 
contemplation  of  the  parties  when  the  contract  was 
made." 

§  115.  EXAMPLES  OF  PROXIMATE  CAUSE. 

The  wrongful  act  of  a  railroad  company  in  leaving 
on  the  track,  in  a  dazed  condition,  a  passenger  who  has 
fallen  from  the  train  through  its  negligence,  is  the 
proximate  cause  of  his  death,  resulting  from  being  run 

dertook  to  pursue  the  moving  ti'ain,  and  was  struck  by  the  engine  of 
another  company  while  so  doing.     Perry  v.  Railroad,  66  Ga.  746. 

3  South-Side  Pass.  Ry.  Co.  v.  Ti-ich,  117  Pa.  St.  390,  11  Atl.  627. 
When  there  is  no  conflict  in  the  testimony,  and  all  the  causes  to  pro- 
duce an  injury  are  known  and  unquestioned,  whether  a  given  act  in 
the  chain  of  causation  is  the  remote  or  proximate  cause  of  the  injury 
is  a  question  for  the  court.     Henry  v.  Railway  Co.,  76  Mo.  288. 

*  7  Q.  B.  Div.  591. 
(280) 


Ch.    9)  PROXIMATE    CAUSE.  §    115 

over  by  another  train.^  Where  a  driver  of  a  stage 
coach  requires  passengers  to  get  out  and  walk  up  a 
mountain  side  on  a  bitterly  cold  day,  during  a  blinding 
snowstorm,  and  fails  to  wait  on  the  summit  for  two 
passengers  who  have  been  unable  to  keep  up  with  the 
coach,  the  proximate  cause  of  an  injury  to  one  of  such 
passengers,  whose  limbs  are  frozen  by  the  exposure,  is 
the  reckless  and  inhuman  conduct  of  the  driver  in  de- 
serting the  passengers.-  The  failure  of  the  carrier  to 
eject  or  restrain  a  passenger  whom  it  knows  to  be  vio- 
lently insane  is  the  proximate  cause  of  the  death  of  a 
fellow  passenger,  shot  by  the  insane  passenger.^  Fail- 
ure of  a  railroad  company  to  light  its  station  plat- 
form in  the  nighttime  is  the  proximate  cause  of  an  in- 
jury to  a  passenger,  who  is  injured  by  a  misstep  while 
walking  along  it  to  the  train.*     Negligence  in  sudden- 

§  115.  1  Cincinnati,  I.,  St.  L.  &  C.  R.  Co.  v.  Cooper,  120  In.l.  4ri9,  22 
N.  E.  340. 

2  McClelland  v.  Burns.  5  Colo.  390. 

3  Meyer  v.  Railway  Co.,  4  C.  C.  A.  221,  54  Fed.  110.  In  order  to 
charge  the  company  with  the  duty  of  restraining  the  insane  passenger. 
It  was  not  necessary  that  it  should  foresee  that  if  he  was  not  re- 
strained he  would  kill  the  deceased  passenger.  If  the  situation  was 
sucli  that  the  company  should  have  foreseen  a  reasonable  possibility 
of  injury  being  caused  by  the  presence  of  the  insane  man  on  the 
train,  then  the  obligation  to  take  proper  at-tion  for  the  protection  of 
passengers  arose,  although  the  company  could  not  possibly  anticipate 
which  one  of  the  passengers  might  be  injured  by  him.  in  case  he  was 
not  restrained,  nor  whether  or  not  his  violence  woiUd  cause  death. 

4  Alabama  G.  S.  R.  Co.  v.  Arnold,  80  Ala.  OUO,  2  South.  337.  A 
female  passenger,  over  To  years  old,  was  set  down  in  the  dark  at  a 
country  depot,  not  opened  or  llglited,  and  no  one  was  there  to  give 
her  information.  She  left  the  depot  to  search  for  a  highway  on  which 
the  house  where  she  was  to  stay  was  situated.  Failing  in  this  at- 
tempt, she  returned  to  the  depot;    and,  in  trying  to  reach  the  other 

(I'Sl) 


§115  CARRIERS   OF   PASSENGERS.  (Ch.    0 

ly  starting  a  street  oar  while  a  passenger  is  getting  on 
the  step  is  the  proximate  canse  of  an  injury  to  a  violin 
carried  by  him,  which  struck  against  a  pillar  beside 
the  track  as  he  was  thrown  from  the  car.'  The  negli- 
gence of  a  railroad  company  in  permitting  the  gate  of 
one  of  its  cattle  cars  to  be  out  of  repair  is  the  proxi- 
mate cause  of  injury  to  a  shipper  of  stock,  who,  while 
endeavoring  to  secure  the  gate  with  a  rope,  was  run 
over  by  the  cattle,  which  had  become  frightened  by  the 
noise  of  a  passing  freight  train. "^  The  only  passenger 
in  an  electric  street  car,  a  girl  18  years  old,  became  sud- 
denly ill,  told  the  conductor  she  felt  sick,  and  twice 
requested  him  to  stop  the  car,  so  that  she  might  get  off. 
He  failed  to  do  so,  and,  going  to  the  front  of  the  car, 
began  talking  to  the  motorman.  Plaintiff,  growing- 
worse,  and  becoming  frightened  and  dazed,  rose  to  her 
feet,  and  staggered  towards  the  rear  of  the  car,  and 
there  fell,  unconscious,  through  the  door.  It  was  held 
that  it  was  for  the  jury  to  determine  whether  the  con- 
ductor's negligence  in  failing  to  stop  the  car,  or  to  ren- 
der plaintiff  any  assistance,  was  the  proximate  cause  of 
her  injuries.'  An  intending  cabin  passenger  on  a 
steamer  sailing  from  a  cholera  infected  port  intended 
to  forfeit  his  ticket,  rather  than  make  the  voyage,  if 

end  of  the  building,  to  shelter  herself  from  a  cold  wind,  she  fell  from 
the  platform,  and  was  injm-ed.  Held,  that  the  jury  was  justified  in 
findhig  that  defendant's  negligence  in  failing  to  liave  a  light  at  the 
depot,  or  any  person  tliere  wlio  could  give  strangers  information,  was 
the  proximate  cause  of  the  injury.  Patten  v.  Railway  Co.,  32  Wis. 
524. 
B  Schals(  lia  v.  Railroad  Co.,  19  Misc.  Rep.  141,  43  N.  Y.  Supp.  251. 

6  Texas  &  P.  Ry.  Co.  v.  Bigham  (Tex.  Civ.  App.)  3G  S.  W.  1111. 

7  McCann  t.  Railway  Co.  (N.  J.  Err.  &  App.)  34  Atl.  1052. 

(282) 


Ch.    9)  PROXIMATE    CAUSE.  §    116 

steerage  passengers  were  on  board.  The  agents  of  the 
steamer  falsely  and  fraudulently  represented  that  no 
steerage  passengers  were  on  board,  and  he  took  pas- 
sage. During  the  voyage  cholera  broke  out  among  the 
steerage  passengers  and  the  crew,  the  vessel  was  de- 
tained in  quarantine,  and  the  cabin  passengers  were 
put  to  inconvenience  and  suffering.  It  was  held  that 
the  false  representations  were  the  i^roximate  cause  of 
the  suffering  in  quarantine.* 

§  116.  EXAMPLES  OF  REMOTE  CAUSE. 

A  speed  in  excess  of  the  rate  allowed  by  city  ordi- 
nance is  not  the  proximate  cause  of  an  injury  to  a  tres- 
passer, who  attempts  to  board  a  moving  freight  train.  ^ 
Eunning  a  train  past  a  station  at  a  greater  rate  of 
speed  than  permitted  by  law  is  not  the  proximate  cause 
of  injury  to  one  who  voluntarily  undertook  to  jump 
from  the  train.-  Failure  to  stop  a  street  car  at  the 
place  where  the  conductor  said  it  would  stop  is  not  the 

8  The  Normaniila,  62  Fed.  4G9.  The  damage  did  happen  in  part  di- 
rectly from  the  subject-matter  of  the  deceit,  and  not  wholly  from  an 
independent  cause,  such  as  a  cyclone  or  collision;  and,  as  the  pres- 
ence of  the  steerage  passengers,  and  of  the  cholera  among  th(  m.  was 
certainly  a  contributing  cause  of  the  damage,  that  is  sufficient  to  make 
defendant  liable. 

§  116.  1  Western  Ry.  of  Alabama  v.  Mutch,  07  Ala.  10-4,  11  South. 
804.  Same  principle,  Chicago,  II.  I.  &  P.  Ry.  Co.  v.  Koehler,  47  111. 
App.  147.  In  an  action  for  injuries  to  a  passenger  sustained  through 
falling  down  a  .^airwaj'  at  a  station,  it  is  not  enough  to  show  that  the 
stairs  were  of  improper  construction  or  in  defective  condition,  but  it 
must  further  appear  that  the  fall  was  caused  thereby.  Davis  v.  Hnil- 
way  Co.,  2  Fost.  &  F.  .'jSS. 

2  Howell  V.  Railroad  Co.  (Miss.)  21  South.  74G. 

(2S3) 


§  116  CARRIERS  OF  PASSENGERS.  (Ch,  9 

proximate  cause  of  injury  to  a  passenger  who  under- 
took to  leave  tlie  car  while  in  motion,  without  making 
a  further  effort  to  stop  it.^  Failure  to  heat  a  car  is  not 
the  proximate  cause  of  injury  to  a  passenger  who  was 
thrown  from  the  platform  while  passing  from  car  to 
car  in  search  of  a  warmer  one.*  A  horse  car  in  which 
plaintiff  was  riding  approached  a  wagon,  loaded  with 
lumber,  coming  from  the  opposite  direction,  and  using 
the  parallel  rails  of  the  street-car  track.  When  this 
wagon  was  abreast  of  the  car,  its  driver  suddenly  turn- 
ed off  the  track,  and  a  piece  of  the  iH'ojecting  lumber 
was  thrust  through  the  car  window,  striking  plaintiff. 
It  was  held  that  the  fact  that  the  car  was  traveling  at 
an  unusual  rate  of  speed  was  not  the  proximate  cause 
of  the  accident,  and  that  the  street-car  company  was 
not  liable.^  A  mixed  passenger  and  freight  train  was 
stopped  at  a  station  where  there  was  no  station  house. 
The  locomotive  was  emplo3'ed  for  some  time  in  switch- 
ing cars  onto  a  side  track,  and  then  returned  with  sev- 
eral freight  cars  to  be  coupled  to  the  train.  The  coup- 
ling was  done  in  the  ordinary  manner,  and  the  concus- 
sion was  not  unusually  violent.  But  a  child,  nearly 
three  years  old,  standing  on  the  platform  of  the  pas- 
senger car,  was  thrown  from  it,  and  under  the  wheels. 
The  child's  mother,  who  observed  the  accident,  jumped 

8  White  V.  P.ailway  Co.,  105  Mass.  522,  43  N.  E.  298.  Failure  to  stop 
a  street  car  on  request  is  not  tlie  proximate  cause  of  an  injury  result- 
ing from  the  act  of  the  passenger  in  jumping  from  the  car  while  in 
motion.     North  Chicago  St.  R.  Co.  v.  Wrixon,  51  111.  App.  307. 

*  Sickles  V.  Railway  Co.  (Tex.  Civ.  App.)  35  S.  W.  493. 

G  Alexander  v.  Railroad  Co.,  128  X.  Y.  13,  27  N.  E.  950,  reversing  59 
Hun,  010,  12  N.  Y.  Supp.  085. 
(284) 


Ch.    9)  PROXIMATK    CAUSE.  §    116 

from  the  car,  tlirnst  her  arms  under  the  wheels,  and 
saved  her  child,  but  her  own  arm  was  caught  under  the 
wheels,  and  badly  broken.  It  was  held  that  the  fail- 
ure of  the  company  to  erect  a  station  house  at  that 
place  for  the  accommodation  of  passengers  was  not  the 
proximate  cause  of  the  accident.*^  A  wife,  expecting 
her  husband  to  arrive  on  a  train  in  the  evening  in  an 
intoxicated  condition,  sent  her  two  sons  to  the  station 
to  bring  him  home.  They  were  ordered  from  the  depot 
by  the  agent  in  charge,  without  justification  or  excuse. 
After  the  boys  had  left,  the  husband  arrived  on  the 
train,  drunk,  but  knowing  what  he  was  doing.  He 
left  the  train  and  the  station,  but  returned  some  time 
during  the  night,  went  to  sleep  on  the  track,  and  was 
killed.  It  was  held  that  the  wrongful  act  of  the  ticket 
agent  in  driving  the  boys  from  the  depot,  thus  prevent- 
ing them  from  conducting  him  home,  was  not  the  prox- 
imate cause  of  his  death.^  Failure  to  stop  a  train  as 
it  passes  a  station  house  is  not  the  proximate  cause  of 
an  injury  to  a  passenger,  who  follows  the  conductor  to 
the  open  door  of  a  car,  to  request  him  to  stop  it,  and 

«  De  Mahy  v.  Steamship  Co.,  45  La.  Ann.  132!),  14  South.  Gl. 

7  Rozwadosfskie  v.  Railway  Co.,  1  Tex.  Civ.  App.  487,  20  S.  W.  872. 
**At  the  time  the  agent  required  the  boys  to  leave  the  depot,  ne  did 
not  know  deceased  was  drunk,  and  would  arrive  in  that  condition, 
nor  did  he  know  that  they  were  sent  there  to  protect  him  on  the  way 
home  on  acef)unt  of  his  expected  helplessness  from  intoxication.  He 
only  knew  that  they  were  there  to  meet  him.  This  being  so,  the 
wrong  was  too  remote  from  the  injury  to  create  liability.  Had  he 
known  all  the  facts,  then  his  act  would  have  included  all  its  reasonable 
and  probable  conseiiuences  flowing  therefrom.  He  and  his  jiriii  iiial 
could  be  held  culi)ablc  only  for  what  was  known  to  him,  or  wiiat  he 
would  be  presumed  to  know." 

(285) 


§  116  CARRIERS  OF  PASSENGERS.  (Ch.  9 

whose  finger  is  jammed  by  the  slamming  of  the  door, 
caused  by  the  stopping  of  the  train.*  Before  a  passen- 
ger had  time  to  enter  a  horse  car,  it  started  off  at  a 
rnpid  rate,  and,  while  she  had  one  foot  on  the  car  plat- 
form and  the  other  on  the  car  step,  the  driver  suddenly 
whipped  up,  and  she  was  bounced  from  the  car.  She 
alighted  on  her  feet  without  injury,  but  was  almost  im- 
mediately struck  by  a  runaway  horse,  and  severely  in- 
jured. It  was  held  that  the  proximate  cause  of  the  ac- 
cident was  the  runaway  horse,  and  not  the  negligence 
of  the  driver.^     The  failure  of  a  railroad  company  to 

8  Hardwick  v.  Railroad  Co.,  85  Ga.  507,  11  S.  E.  832.  The  fact  that 
a  compartment  on  a  train  was  negligently  permitted  to  be  overcrowd- 
ed is  not  the  proximate  cause  of  an  injurj^  to  a  passenger  in  that  com- 
partment, wlio  at  an  intermediate  station  stood  up  to  prevent  other 
persons  from  entering  the  compartment,  and  who  was  jei'ked  forward 
by  the  starting  of  the  train,  and  put  his  liand  on  the  hinge  of  the 
carriage  door  at  the  veiy  moment  it  was  being  shut  by  the  porter, 
thus  crushing  his  thumb.  Railway  Co.  v.  Jackson,  L.  R.  3  App.  Cas. 
193. 

s.South-Side  Pass.  Ry.  Co.  v.  Trich,  117  Pa.  St.  390,  11  Atl.  627.  "It 
was  certainly  not  a  natural  consequence  of  a  person  being  upon  a 
street  that  he  would  be  struck  by  a  runaway  horse.  Nor  is  there  the 
slightest  reason  for  saying  that  it  would  be  a  probable  consequence. 
The  utmost  that  can  be  said  would  be  that  such  a  consequence  might 
possibly  happen.  But  things  or  results  which  are  only  possible  can- 
not be  spoken  of  as  either  probable  or  natural."  Id.  Where  two 
street-railway  cars,  going  in  opposite  directions,  are  approaching  each 
other,  and  the  conductor  of  one  of  them  neghgently  fails  to  stop  the 
car  to  allow  a  passenger  to  alight,  or  negligently  allows  a  woman  or 
ch'ld,  being  a  passenger,  to  leave  the  car  while  in  motion,  and  such 
passenger,  nevertheless,  does  alight  safely  on  the  opposite  side  from 
■which  the  car  is  approaching,  and,  immediately  turning  to  cross  the 
street,  is  nin  over  by  the  other  car,  the  negligence  in  failing  to  stop 
the  car,  or  to  prevent  the  passenger  from  alighting,  is  not  the  proxi- 
mate cause  of  the  injury,  as  matter  of  law,  and  it  is  error  to  submit 
(2SG) 


Ch.  9)  PROXIMATE    CAUSE.  §    117 

l^rovide  separate  cars  for  tlie  accommodation  of  white 
and  colored  ])asseugers,  as  required  bj  law,  is  not  the 
proximate  cause  of  an  assault  by  a  white  passenger  on 
n  colored  passenger,  riding  on  the  platform  of  a  car." 
3  Jobbery  committed  from  the  person  of  a  passenger  trav- 
eling in  an  overcrowded  railway  carriage  is  not  such 
a  natural  and  probable  consequence  of  the  overcrowd- 
ing as  to  make  the  company  liable  to  the  passenger, 
even  if  the  overcrowding  was  caused  by  the  negligence 
of  the  company's  servants.^^ 

§  117.     INTERVENING  CAUSE. 

One  of  the  most  valuable  criteria  furnished  us  by  the 
authorities  on  the  subject  of  proximate  cause  is  to  as- 
certain whether  any  new  cause  has  intervened  between 
the  fact  accomplished  and  the  alleged  cause.  If  a  new 
force  or  power  has  intervened,  of  itself  sufficient  to 
stand  as  the  cause  of  mischief,  the  other  must  be  con- 

the  question  to  tho  juiy.  Dunn  v.  Railway  Co.,  21  Mo.  App.  188. 
The  act  of  tlie  driver  of  a  street  car  in  strilving  a  trespassing  boy  witli 
a  wliip,  to  make  liim  let  go  of  tlio  car  bralce.  is  not  the  proximato 
cause  of  an  injury  1o  tlie  boy,  wlio  thereupon  jumps  from  the  car. 
nud  runs  on  a  parallel  track,  wliere  he  is  struck  by  another  car. 
Mack  V.  Railway  Co.,  8  Pa.  Co.  Ct.  K.  305. 

10  Royston  v.  Railroad  Co.,  67  Miss.  370,  7  South.  320. 

11  Cobb  V.  Railway  Co.  (House  of  Lords,  181)4)  G  Reports,  203,  af- 
firming [1893]  1  Q.  B.  450.  An  insurance  company  which  lias  paid 
a  policy  on  the  life  of  a  deceased  person,  killed  by  tlie  negligence  of 
a  railroad  company  wliile  a  passenger,  cannot  recovet  from  the  rail- 
road company  the  amount  paid  by  it,  since  the  loss  of  the  insurance 
company  is  a  remote  and  indirect  consequence  of  the  misconduct  of 
the  railroad  company.  Connecticut  Mut.  Life  Ins.  Co.  v.  New  York 
ic  N.  H.  R.  Co.,  25  Conn.  205. 

(287) 


§117  CARRIERS   OF   PASSENGERS.  (Ch.   9 

sidered  as  too  remote/  Thus  a  railroad  company  is 
not  liable  for  the  death  by  suicide  of  an  insane  person, 
who,  eight  months  before,  had  been  injured  in  a  rail- 
road wreck,  which  produced  the  insanity.  The  prox- 
imate cause  of  the  death  was  the  insane  man's  own  act 
of  self-destruction.  It  was  a  new  and  a  suiflcient 
cause  of  death.  "The  argument  is  not  sound  which 
seeks  to  trace  this  immediate  cause  of  death  through 
the  previous  stages  of  mental  aberration,  physical  suf- 
fering, and  eight  months'  disease  and  medical  treat- 
ment to  the  original  accident  on  the  railroad.  Such  a 
course  of  possible,  or  even  logical,  argument  would 
reach  back  to  that  ^great  first  cause,  least  understood,' 
in  which  the  train  of  all  causation  ends.  The  suicide 
was  not  a  result  naturally  and  reasonably  to  be  ex- 
pected from  the  injury  received  on  the  train.  It  was 
not  a  natural  and  probable  consequence,  and  could  not 
have  been  foreseen  in  the  light  of  the  circumstances 
attending  the  negligence  of  the  officers  in  charge  of  the 
train."  ^  The  failure  of  a  railroad  company  to  stop  its 
train  at  a  station,  and  the  command  of  the  conductor 
to  a  passenger  to  jump  from  the  train,  are  not  the  prox- 
imate causes  of  injury  to  such  passenger,  who  alighted 
safely  on  the  platform,  but  who  was  run  into  by  a  fel- 
low passenger,  and  thrown  under  the  train  by  force  of 
the  collision.^  The  negligence  of  a  railroad  company 
in  permitting  a  locomotive,  with  banked  tire,  to  stand 

§  117.    1  Insurance  Co.  v.  Tweed,  7  Wall.  44, 

2  Scheffer  v.  Railroad  Co..  105  U.  S.  249. 

8  Reibel  v.  Railway  Co.,  114  Ind.  476,  17  N.  E.  107.  The  negli- 
gence of  a  carrier  in  leaving  a  hatchway  on  one  of  its  boats  open 
does  not  render  it  liable  for  injuries  to  a  passenger,  who  was  vio- 
(288) 


Ch.  9)  PROXIMATE    CAUSE.  §    117 

on  a  side  track,  witli  several  intervenin.o;  tracks  and 
switches  between  it  and  tlie  main  track,  is  not  the 
proximate  canse  of  an  injury  to  a  passenger  on  another 
train,  in  a  collision  with  the  engine,  which  Avas  wrong- 
fnlly  and  malicionslv  taken  from  the  side  track  and 
run  on  the  main  track,  and  started  along  it,  by  some 
third  person/  A  shipper  of  stock,  in  the  nighttime, 
Avent  to  the  railroad  yards  to  take  passage  on  the  train 
carrying  his  stock.  He  entered  the  caboose,  and  was 
told  by  one  of  defendant's  servants  that  he  could  not 
remain  inside,  because  the  train  was  not  ready.  After 
remaining  a  short  time  on  the  platform  of  the  caboose, 
the  drover  alighted,  and  while  standing  on  an  adjoin- 
ii)g  track  he  was  injured  by  another  train.  It  was 
held  that  his  expulsion  from  the  caboose  was  not  the 
proximate  cause  of  his  injury,  since  the  spontaneous 
action  of  an  independent  will  intervened  between  the 

lently  pushed  or  pulled  into  it  by  strangers.  Evnnsville.  C.  &  M.  ?!. 
Co.  V.  AA'ildmau.  63  Ind.  370.  Where  a  street  car  which  has  gotten 
out  of  the  control  of  the  company's  servants  is  running  rapidly 
down  grade,  and  a  ]\Tssenger  is  pulled  or  crowded  off  by  her  fellow 
passengers,  the  fact  that  she  was  surprised,  excited,  or  bewildere(f 
dees  not  render  the  company  liable  for  the  intervening  agency  that 
] lulled  or  crowded  her  off  the  ear  against  her  will.  .Toliet  St.  Ry. 
(V).  V.  Mcrarthy,  42  111.  App.  4!>.  The  failure  of  a  railroad  company 
to  sitop  its  train  a  reasonably  sufficient  length  of  time  to  enable  pas- 
sengers to  get  off  is  not  the  proximate  cause  of  an  injury  to  a  child. 
Avho  was  put  off  the  train,  after  it  had  started,  by  a  fellow  passenger, 
if  the  jury  finds  that  the  act  of  the  fellow  passenger  was  not  a 
natural  and  probable  result  of  the  comjiany's  negligent  act.  The 
act  of  the  fellow  jiassenger  is  an  intervening  cause,  which  relieves 
the  company  from  liability.  Texas  &  P.  Ry.  Co.  v.  Beck  worth  (Tox. 
Civ.  App.)  .•'►2  S.  W.  347. 
4  Mars  v.  Canal  Co.,  54  Hun,  025,  S  X.  Y.  Supp.  107. 

V.  1  I-ET.CAR.PAS. 19  (289) 


R  117  CARRIERS  OF  PASSENGERS.  (Ch.  U 

two  events.'  The  mere  fact  that  a  trespasser  on  a 
train  is  intoxicated,  but  not  unconscious,  or  in  a  stu- 
por, does  not  render  his  rightful  expulsion  from  the 
train  at  a  point  not  dangerous,  and  with  which  he  is 
familiar,  the  proximate  cause  of  his  death,  resulting 
from  his  being  struck  by  another  train  while  on  the 
track.*'  The  assurance  of  the  conductor  of  a  stock 
train  to  a  drover  that  cabooses  would  not  be  changed 
at  a  certain  station  is  not  the  proximate  cause  of  an  in- 
jury to  the  drover,  w  ho  got  off  the  train  at  that  station 
to  examine  his  stock,  and  who  climbed  upon  a  stock  car 
as  the  train  started,  and  walked  backward  to  the  ca- 
boose, which  was  kicked  from  the  train  just  as  he  was 
about  to  step  on  it,  precipitating  him  to  the  track.' 

5  Henry  v.  Railway  Co.,  76  Mo.  288. 

G  Loui.sville  &  N.  R.  Co.  v.  Johnson,  92  Ala.  204,  9  South.  269. 
-"Left  where  passing  trains  would  not  injure  him  without  some  in- 
tervening agency,  if  he  afterwards  wandered  on  the  track,  and  placed 
himself  in  a  i>osition  of  peril,  it  was  his  own  carelessness,  for  which 
defendant  was  not  responsible."  McClelland  v.  Railway  Co.,  94  Ind. 
276.  Where  a  drunken  passenger  is  ejected  at  a  station,  and  then 
lies  down  on  the  track,  and  is  run  over  and  killed  by  another  train 
an  hour  later,  about  200  yards  from  the  place  of  ejection,  the  death 
is  not  the  natural  and  probable  consequence  of  the  ejection.  St.  Louis 
&  S.  F.  Ry.  Co.  V.  Williams  (Tex.  Civ.  App.)  37  S.  W.  992.  The 
expulsion  of  a  drunlven  passenger  from  an  electric  car,  shortly  after 
sunset,  upon  a  public  highway,  and  near  dwelling.^,  is  not  the  proxi- 
mate cause  of  his  death,  caused  by  his  wandering  on  defendant's 
tracks,  and  being  struck  by  another  car.  Edgerly  v.  Railroad  Co. 
<N.  H.)  36  Atl.  558.  See,  to  .same  effect,  Georg.a  S.  &  F.  R.  Co.  v. 
George,  92  Ga.  760,  19  S.  E.  813. 

7  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Elliott,  5  C.  C.  A.  347,  55  Fed. 

049.     "The  acts  of  the  plaintiff  in  failing  to  return  to  the  caboose  at 

the  end  of  the  five  minutes  he  was  told  that  the  train  would  stop,  in 

climbing  up  the  cars,  and  walking  back  on  their  tops  to  the  rear  of 

(290) 


Ch.   9)  PROXIxMATE    CAUSE.  §    117 

The  negligence  of  a  conductor  of  a  freight  train  in  per- 
mitting a  boy  to  ride  in  the  caboose  from  the  depot  to  a 
water  tank  is  not  the  proximate  cause  of  an  injurj^  to 
the  boy,  who  got  off  the  train  in  safety  at  the  water 
tank,  but  who,  after  the  train  had  started,  caught  hohl 
of  the  ladder  handle  on  one  of  the  cars,  and  fell  under 
the  ti'ain  on  letting  go  his  hold.®  A  railroad  train  ran 
into  a  person  at  a  highway  crossing  with  such  force  as 
to  throw  the  body  against  a  passenger  at  a  station  some 
distance  away,  injuring  him.  It  was  held  that  the 
railway  company's  failure  to  give  a  signal  at  the  high- 
way crossing  was  not  the  proximate  cause  of  the  pas- 
senger's injury,  since  the  presence  of  the  person  on  the 

the  last  stock  car,  so  that  he  arrived  there  at  the  very  instant  when 
the  caboose  was  to  be  changed,  were  independent,  intervening  causes, 
that  prevented  the  natural  and  probable  consequences  of  the  con- 
ductor's assurance  and  the  movement  of  the  train,  and  brouglit 
about  an  unnatural  and  improbable  result,  that  no  human  foresight 
could  have  anticipated;  an  accident  that  resulted  from  a  strange 
combination  of  fortuitous  circumstances,  few  of  which  seem  to  have 
been  more  remote,  or  less  likely  to  have  produced  the  surprising 
consequences,  than  the  conversati(m  and  acts  of  the  conductor."  But 
to  show  how  circumstances  alter  cases,  attention  is  called  to  Andrist 
v.  Railway  Co.,  30  Fed.  345.  In  that  case  the  facts  were  as  fol- 
lows: An  emigrant  train,  which  had  stopped  at  a  station  overnight, 
suddenly  started  the  following  morning,  without  any  signal,  while 
the  passengers  were  outside.  Plaintiff,  one  of  the  passengers,  jump- 
ed on  the  platform  next  his  own,  and.  after  waiting  a  moment,  un- 
til a  brakenian  who  stood  in  the  passageway,  moved  aside,  he  pro- 
ceeded to  cross  to  his  own  car.  At  that  moment  the  cars  separated, 
having  been  previously  uncoupled,  to  divide  the  train,  and  plain- 
tifC  fell  between  them,  and  was  run  over.  Held,  that  the  negligence 
of  the  company  in  starting  tlie  train  without  notice,  and  the  break- 
ing it  asunder  without  warning,  was  the  proximate  cause  of  the  in- 
jury. 

8  Louisville  &  N.  K.  Co.  v.  Webb  (Ky.)  ;'..">  S.  \N'.  1117. 

(291) 


§117  CARRIERS   OF  PASSENGERS.  (Ch.    9' 

track  was  an  efficient  intervening  canse,  and  the  engi- 
neer could  not  anticipate  tliat  liis  failure  to  give  the 
signals  would  injure  a  passenger  at  the  station.** 
AVhile  the  combination  of  circumstances  in  this  last 
case  are  remarkable,  a  recent  case  from  Texas  furnish- 
es a  still  more  extraordinary  chapter  of  accidents.  A 
passenger  carried  with  him  into  a  train  a  sack  contain- 
ing a  jug  filled  with  alcohol.  He  negligently  placed 
the  sack  in  a  seat  beside  him,  so  that  a  part  of  the  sack 
projected  into  the  aisle  of  the  car.  Somehow  or  other 
the  sack  got  untied,  the  jug  fell  on  the  floor  and  broke, 
and  the  alcohol  was  spilled.  Another  passenger,  light- 
ing a  cigar,  carelessly  threw  a  lighted  match  into  the 
alcohol,  and  it  blazed  up  to  the  ceiling  of  the  car,  burn- 
ing plaintiff,  a  third  passenger,  whose  shoes  and  stock- 
ings had  been  saturated  with  the  alcohol.  It  was  held 
that  the  train  hands,  having  no  knowledge  of  the  con- 
tents of  the  sack,  were  not  negligent  in  permitting  it 
to  remain  in  the  car,  and  that  their  negligence  in  per- 
mitting it  to  protrude  over  the  seat  into  the  aisle  was 
not  the  proximate  cause  of  plaintiff's  injuries.^" 

But  fright  of  a  passenger  at  an  impending  peril 
caused  by  the  carrier's  negligence,  which  impels  him 
to  do  some  act  that  a  person  of  ordinary  prudence 

9  Wood  V.  Railroad  Co.  (ISDn)  IG  Pa.  Co.  Ct.  R.  2D0,  affirmed  35 
Atl.  690,  where  the  supreme  court  of  Peunsylvania  said:  "The  in- 
jury to  the  passenger  was  not  the  natural  and  pre  bable  consequence  of 
the  nejjligence.  It  was  not  such  a  consequence  as,  under  the  sur- 
rciunding  circumstances,  might  and  ought  to  have  been  foreseen  by 
the  train  hands  as  likely  to  flow  from  their  omission  to  give  the  sig- 
nals." 

10  Gulf,  C.  &  S.  F.  R.  Co,  V.  Shields,  9  Tex.  Civ.  App.  652,  29  S. 
W.  652. 

(292) 


<jh.    9)  PROXIMATE    CAUSE.  §    118 

might  do  in  the  circumstauces  to  avoid  injury,  is  not  a 
new  or  independent  cause  between  tlie  negligence  and 
an  injury  sustained  in  the  effort  to  avoid  the  peril.  If, 
alarmed  by  the  peril  apparently  occasioned  by  the  de- 
railment of  a  car,  but  acting  as  a  person  of  ordinary 
prudence  would  in  like  circumstances,  in  endeavoring 
to  avoid  the  same,  a  i^assenger  betakes  himself  to  the 
platform  of  the  car,  and  jumps  or  falls  off,  or  is  jolted 
off  by  the  car's  motion,  or  pushed  or  crowded  oft'  by 
fellow  passengers  in  the  excitement  of  the  moment, 
any  injury  to  her  health  or  person  occasioned  by  her 
fright,  or  by  her  striking  the  ground,  would  be  directly 
traceable  to  the  derailment  as  its  primary,  proximate, 
responsible,  and  juridical  cause.  In  law  there  would 
be  no  new  or  independent  cause  between  the  derail- 
ment and  the  injury.^^ 

§  118.     COMBINED  AND  CONCURRING  CAUSES. 

The  rule  relieving  a  defendant  from  liability  when 
there  has  been  an  intervening  cause  is  subject  to  these 
qualifications:  (1)  Where  one  does  an  unhnvful  act, 
which,  combined  with  an  extraordinary  and  unfore- 

11  Smith  V.  Kailway  Co.,  30  :\Iinn.  KH),  14  N.  W.  T'.tT.  Whore  a 
passeugei",  staiulins  on  a  platfonu  awaitiiis  a  train,  lias  reasonable 
cause  to  believe  that  she  is  in  peril  from  the  apiiroach  of  the  I  rain 
from  an  unexpected  direction,  by  reason  of  the  niisjjlacement  of  a 
switch  through  the  culpable  negligence  of  the  company's  servants, 
and  in  running  away,  to  escape  the  apprehended  peril,  falls  and  is 
injured,  the  jury  is  at  hoerty  to  lind  that  tlie  nt>gligence  in  nds- 
placing  the  switch  was  the  efticient  cause  of  the  injury.  Caswell  v. 
Railroad  Co.,  08  Mass.  I'M.  For  contributory  negligence  of  fright- 
ened passenger,  see  post,  §§  lSo-188. 

(2ij;j) 


R  118  CARRIERS  OF  PASSENGERS.  (Cll.  ^ 

seen  cause,  results  in  damage  to  another,  the  wrongful 
act,  and  not  the  intervening  cause,  is  considered  the 
proximate  cause  of  the  damage/  (2)  When  several 
proximate  causes  contribute  to  an  accident,  and  each 
is  an  efficient  cause,  without  the  operation  of  which  it 
would  not  have  happened,  it  may  be  attributed  to  all 
or  any  of  these  causes.'  But  in  all  cases  the  true  rule 
is  that  the  injury  must  be  the  natural  and  probable 
consequence  of  the  negligence,  such  as,  under  the  cir- 
cumstances, would  have  been  foreseen  by  a  person  of 
average  competence  and  knowledge,  placed  in  defend- 
ant's situation,  as  likely  to  flow  from  his  conduct.  The 
leadino-  case  of  this  class  is  the  famous  Squib  Case. 
There  defendant  threw  a  lighted  squib  into  a  building 
full  of  people.  The  person  near  whom  it  fell  cast  it 
from  him,  and  a  third  person  did  the  same.  In  this 
third  flight,  it  struck  plaintiff,  exploded,  and  put  out 
his  eye.  Defendant  was  justly  held  liable,  notwith- 
standing the  acts  of  the  intermediate  persons  in  cast- 
ing the  squib  from  themselves.^  Another  very  good 
illustration  is  found  in  a  recent  case  decided  by  the  su- 
preme court  of  Pennsylvania.  Defendant,  the  propri- 
etor of  a  coke  furnace,  used  a  railroad  track  in  connec- 

§  118.    ^  Salisbury  v.  Hei-clieuroder,  lOG  Mass.  458. 

2  King  V.  City  of  Colioes,  77  N.  Y.  S3;  Waller  v.  Railway  Co.,  59 
Mo.  App.  410. 

3  Seott  V.  Shepherd,  3  Wils.  403,  1  Smith,  Lead.  Cas.  754.  Where 
a  vessel  mounils  ou  a  shoal  through  the  negligence  of  her  master  and 
crew,  and  is  inevitably  impelled  bj-  wind  and  tide  against  plaintiff's 
sea  Avail,  the  negligence  of  the  master  and  crew  is  the  proximate 
cause  of  the  injury  to  the  wall.  Lords  Bailiff  Jurats  of  Roniney 
Marsh  v.  Corporation  of  Trinity  House,  L.  R.  5  Exch.  204,  L.  R.  7 
Lxch.  247. 


Ch.   9)  PROXIMATE    CAUSE.  §    118 

tion  with  his  furnace.  This  track  formed  the  arc  of 
a  circle,  and  was  crossed  twice  by  the  track  of  a  com- 
mon carrier  railroad,  which  subtended  the  arc  as  a 
cord.  Through  the  negligence  of  defendant's  engi- 
neer, one  of  his  engines  on  the  furnace  track  collided, 
at  one  of  the  crossings,  with  a  passenger  train  on  the 
carrier  track.  Just  before  the  collision,  defendant's 
engineer  reversed  his  engine,  shut  off  the  steam,  and 
jumped  to  the  ground.  By  the  shock  of  the  collision, 
the  throttle  on  defendant's  engine  was  reopened,  and  it 
started  backward  around  the  furnace  track,  and  again 
collided  with  the  passenger  train  on  the  second  cross- 
ing, where  it  had  been  stopped,  injuring  plaintiff,  a 
passenger.  It  was  held  that,  though  the  shock  of  the 
first  collision  intervened  to  open  the  throttle,  and  to 
turn  loose  the  destructive  agency  which  inflicted  the 
injuries,  yet  defendant  was  liable.  Since  the  first  col- 
lision was  the  result  of  the  negligence  of  defendant's 
engineer,  he  must  be  bound  to  foresee  whatever  conse- 
quences might  ensue  from  his  negligence,  without  the 
intervention  of  some  other  independent  agency,  though, 
in  advance,  the  actual  result  might  have  seemed  im- 
probable. No  intermediate  cause,  disconnected  with 
the  primary  fault,  and  self -operating,  existed  to  affect 
the  question  of  defendant's  liability.  It  was  the  en- 
gineer's negligence  that  caused  the  first  collision,  and 
what  occurred  in  consequence  of  this  collision  was  not 
broken  by  the  intervention  of  any  independent  agent 
whatever.* 

Where  a  brakeman,  on  hearing  a  signal  from  the 

4  I'.uiitiny  V.   Uogsett,   l.'iO   Pa.   St.   3GL!,  21  Atl.  31,  33,   'M. 

(295) 


jj    113  CARRIERS   OF   PASSENGERS.  (Oil,   9 

o 

locomotive  whistle,  calls  out  in  a  loud  voice,  ''Jump 
for  your  lives,"  the  fact  that  a  fellow  passenger  there- 
after shouts,  "Come  on  boys,  let's  get  off,"  will  not  re- 
lieve the  railroad  company  from  liability  to  a  passen- 
oer,  Avho  iiinn)ed  from  the  car;  no  danger  being  in 
fact  imminent.'     Where  a  carrier  is  negligent  in  per- 

r.  Ephland  v.  Railway  Co.,  57  Mo.  App.  147.    "If  the  negligent  ac- 
tion of  the  brakeman  was  suih  as  might  ordinarily  be  expected  to 
prwluce  panic  among  the  passengers,  and  a  belief  of  impending  dan- 
ger, the  fact  that  the  resnlting  action  of  the  passengers  added  to 
plaintiff's  terror,  and  operated  as  an  additional  inducement  for  his 
ac-tiun.  will  not  relieve  defendant."     Id.     The  employes  of  a  manu- 
faonu'cr  undertook  to  move  a  freight  car  standing  on  a  side  track  to 
a  place  on  that  track  where  they  could  load  it  more  conveniently. 
The  side  track  was  on  a  down  grade,  and,  owing  to  a  defect  in  the 
l)r:ike  rod,  such  employt's  were  unable  to  hold  the  car  in-  position, 
and  it  ran  on  the  main  track,  injuring  a  passenger  in  a  car  stand- 
ing there.     Held,' that  the  (luestiou  whether  the  defective  brake  rod, 
and  the  failure  of  the  trainmen  to  open  the  safety  switch  leading  to 
the  main  track,  were  the  proximate  causes  of  the  injury,  was  for 
the  jury.     St.  Joseph  &  G.  I.  R.  Co.  v.  Hedge,  44  Neb.  448,  62  N. 
"\V.  887.     The  negligence  of  the  engineer  of  a  locomotive  on  an  ele- 
vated train,  in  starting  his  engine  when  there  are  about  50  passen- 
gers on  the  track   immediately   in  front  of  him,   walking  from  the 
tijiin  to  the  station  platform,  is  the  proximate  cause  of  an  injury 
to  one  of  the  passengers,  who  was  pushed  from  the  track,  falling 
to  the  pavement  bemath,  by  the  other  passengers,  while  endeavoring 
to  get  out  of  the  way  of  the  train.     Lyle  v.  Railway  Co.,  53  Hun, 
(S7,  G  N.  Y.  Supp.  325.  affirmed    127  N.  Y.  GG8,  28  N.  E.  254;    Mc- 
Cabe  V.  Railway  Co.,  53  Hun,  636,  6  N.  Y.  Supp.  418.     The  failure 
to  light  a  depot  platform  may  be  considered  as  the  proximate  cause 
of  an  injury  to  a  passenger,  who,  in  the  dark,  stumbled  over  a  box 
placed  there  by  a  third  person.     Waller  v.  Railway  Co.,  59  Mo.  App. 
4l(t.     A  stagecoach  on  which  plaintiff's  intestate  was  a  passenger 
was  thrown  into  a  canal  b.y  the  negligence  of  the  driver.     The  lock 
ktH'per  turned  on  the  water,  thereby  causing  the  death,  by  drown- 
ing, of  the  passenger.     Held,  that  the  proprietor  of  the  coach  was 
liable.     Byrne  v.  Wilson,  15  Ir.  C.  L.  332.     It  is  dilficult  to  harmo- 
(296) 


Ch.    9)  PROXIMATE    CAUSE.  §     119 

mitting  a  passenger  coach  to  stand  on  a  crossing  with 
another  railroad,  the  fact  that  the  negligence  of  the 
employes  of  the  other  road  also  contributed  to  the  col- 
lision, and  that  such  negligence  may  have  been  the  im- 
mediate cause  thereof,  does  not  relieve  the  caiTier  from 
responsibility.® 

§  119.      PARTICULAR     INJURIES— DISTINCTION     BE- 
TWEEN ACTIONS  ON  CONTRACT 
AND  IN  TORT. 

When  we  come  to  consider  the  class  of  cases  whei'e 
it  is  conceded  that  plaintiff  has  a  right  of  action,  but 
it  is  contended  that  a  i)articular  injury  for  which  he 
claims  damages  is  too  remote,  one  great  diflflculty 
which  confronts  us  is  the  fact  that  the  test  of  remote- 

nize  this  last  case  with  a  number  of  those  cited  iu  the  preceding  sec- 
tion on  the  subject  of  intervening  cause,  and  its  soundness  seems 
somewhat  questionable. 

6  Kellow  V.  Railway  Co.,  6S  Iowa,  470,  23  X.  W.  740,  and  27  N.  W. 
406.  A  passeugtn-  on  a  railroad  train  was  injured  at  an  intersectinir 
crossing  in  a  collision  with  the  train  of  another  comiaiiy.  The  trad; 
of  the  carrier  company  had  been  signaled  as  clear,  and  it  proceeded, 
without  stopping,  to  cross  the  track  of  the  other  company.  The 
track  of  the  other  company  had  been  signaled  as  not  clear,  but  its 
trainmen  disregarded  the  signal,  and  thus  caused  the  collision.  Held 
that,  as  between  the  passenger  and  the  carrier  ctanpauy,  the  failure 
of  its  trainmen  to  stop  the  train  for  one  minute  before  going  on  the 
crossing,  as  required  liy  statute,  was  negligence,  and  a  sntliciently 
proximate  cause  of  the  collision  to  entitle  tlie  passenger  to  recover. 
Graham  v.  Railway  Co..  41  V.  C.  Q.  R.  :524.  Where  a  street  car  is 
negligently  started  while  a  passenger  is  al)0Ut  to  alight,  the  com- 
pany is  liable  for  all  damages  sustained  l)y  the  pa.ssenger,  though 
the  fall  is  accelerated  by  the  molion  of  tlic  conductor's  arm  in  en- 
deavoring to  save  her.  :Macer  v.  Railroad  Co.,  47  N.  Y.  Super.  Ct. 
401. 

(297) 


§119  CARRIERS   OF  PASSENGERS.  (Ch.    ^ 

ness  in  actions  for  breach  of  contract  differs  from  the 
test  which  obtains  in  actions  of  tort.  This  diflflcnlty 
is  pecnliarly  great  in  actions  by  passengers,  since  the 
relation  of  passenger  and  carrier  exists  by  virtue  of 
contract,  and  in  Code  states,  where  the  formal  distinc- 
tions in  pleadings  between  actions  of  tort  and  of  con- 
tract have  been  abolished,  it  is  sometimes  extremely 
difficult  to  say  whether  the  action  sounds  in  tort  or  on 
contract. 

The  leading  case  on  the  subipct  of  remoteness  of 
damages  in  actions  on  contract  is  Hadley  v.  Baxen- 
dale,^  where  the  rule  is  thus  stated:  Where  a  party 
has  broken  his  contract,  the  damages  w^hich  the  other 
party  should  recover  should  be  such  as  may  fairly  and 
reasonably  be  considered  to  arise  naturally — that  is, 
according  to  the  usual  course  of  things — from  the 
breach;  or  such  as  may  reasonably  be  supposed  to 
have  been  in  the  contemplation  of  both  parties  at  the 
time  thej'  made  the  contract,  as  the  probable  result  of 
its  breach.  This  rule,  though  followed  generally  in 
England  and  in  this  country,  has  been  subjected  to  a 
great  deal  of  criticism.  In  a  recent  English  case  ^  it 
is  said :  "It  is  said  that  the  rule  is  that  the  damages, 
to  be  recoverable,  should  be  such  as  would  be  fairly  in 
the  contemplation  of  the  parties  at  the  time  the  con- 
tract was  made;  but  in  my  opinion  the  parties  never 
contemplate  a  breach,  and  the  rule  should  rather  be 
that  the  damage  recoverable  is  such  as  is  the  natural 
and  probable  result  of  the  breach  of  contract."     If,  in 

§  119.     1  9  Exch.  341. 

2  Cotton,  L.  J.,  in  McMahon  v.  Field,  7  Q.  B.  Div.  591. 
(298) 


Ch.    9)  PROXIMATE    CAUSE.  §    H^ 

actions  for  breach  of  contract,  tne  test  of  remoteness 
vrere  whether  the  damages  claimed  are  such  as,  at  the 
time  of  the  breach  of  contract,  instead  of  its  execution,, 
coukl  be  foreseen  by  a  reasonable  man  placed  in  de- 
fendant's situation,  and  possessing  his  knowledge  and 
opportunities  of  observation,  as  likely  to  occur,  the 
rule  in  actions  for  breach  of  contract  and  in  tort  would 
be  very  nearly  the  same.  Such  a  result  would  certain- 
ly do  away  with  a  great  many  very  subtle  distinctions, 
which  have  operated  harshly  and  unjustly,  so  far,  at 
least,  as  actions  by  passengers  are  concerned. 

Hobbs  V.  Kailway  Co.'  was  at  one  time  regarded  as 
the  leading  authority  on  the  question  of  the  remote- 
ness of  damages  in  actions  by  passengers  for  breach  of 
the  contract  of  carriage.     In  that  case  passengers  were 
set  down  at  midnight  about  three  miles  from  their  des- 
tination, and  compelled  to  walk  home.     The  night  was 
drizzling,  and  one  of  the  passengers  caught  cold,  and 
contracted  a  severe  illness,  which  lasted  for  several 
weeks.     It  was  held  that  the  inconvenience  suffer^  in 
having  to  walk  home  was  the  immediate  consequence 
of  the  carrier's  breach  of  contract,  and  that  damages 
therefor  could  be  recovered,  but  that  the  cold  and  the 
illness  were  remote  consequences,  and  that  no  recovery 
could  be  had  therefor.      This  decision  was  place<i  on 
the  ground  that  the  inconvenience  of  having  to  walk 
home  must  have  been  in  contemplation  of  the  parties, 
as  a  necessary  result  of  the  breach  of  the  contract  of 
carriage,  at  the  time  it  was  entered  into,  but  that  the 
cold  and  the  illness  could  not  have  been  thus  contem- 

8  L.  K.  10  Q.  B.  111. 

(299) 


§  119  CARRIERS  OF  PASSENGERS.  (Ch.  9 

plated.  This  decision,  thoiigli  followed  by  some  of  the 
American  cases,  has  generally  been  rejected  in  this 
country,  and  it  has  been  questioned  in  England.*  The 
principle  of  the  decision  was,  however,  followed  in  u 
recent  English  case.  A  railroad  company  was  held 
not  liable  for  repeated  assaults  on  a  passenger  by  his 
fellow  passengers,  on  the  ground  that  its  servants  had 
no  knowledge  of  any  necessity  for  his  protection  when 
it  contracted  to  carry  him."  No  American  case  goes 
so  far  as  this.  The  universal  rule  in  this  country  is 
that  the  duty  to  protect  the  passenger  arises  whenever 
tlie  carrier  knows,  or  should  know,  his  danger,  wheth- 
er that  knowledge  be  acquired  when  the  contract  of 
carriage  is  entered  into,  or  during  the  progress  of  the 
journey.  ° 

The  distinction  as  to  damages  in  actions  of  tort  and 
for  breach  of  contract  was  pointedly  made  by  the  su- 

*  See  McMahon  v.  Field,  supra. 

5  Pounder  v.  Railway  Co.  [1S92]  1  Q.  B.  Div.  385.  The  court  said: 
"Wliat  is  the  duty  of  a  railroad  company  to  its  passengers?  It  arises 
out  of.  the  contract,  and  must  be  determined  upon  the  facts  linowD  to 
the  contracting  parties  at  tlie  time  of  the  contract.  Ordinarily  it  is 
the  duty  of  a  carrier  of  pas.sengers,  arising  out  of  the  contract  of  car- 
riage, to  carry  the  passenger  upon  the  contracted  journey  with  due 
care  and  diligence,  and  to  afford  him  reasonable  accommodation  in 
that  behalf.  If  the  earner  omits  e'.tlier  of  these  duties,  he  is  responsi- 
ble for  the  ordinary  consequences  arising  to  the  ordinary  passenger 
therefrom.  There  is  no  duty  in  tliese  circumstances  to  tal<e  extraordi- 
nary care  of  a  passenger  by  reason  of  any  unknown  peculiarity  at- 
taching to  him."  It  was  further  held  in  this  case  that  the  fact  that 
the  company  permitted  the  carriage  in  which  plaintiff  was  riding  to 
become  overcrowded  was  not  the  proximate  cause  of  his  injuries. 
This  case  was  commented  on  unfavorably  in  the  house  of  lords  in 
Cobb  V.  Railway  Co.  [1894]  0  Reports,  203. 

6  See  ante,  c.  7. 

1300) 


Ch.   9)  PROXIMATE    CAUSE.  §    119 

preme  judicial  court  of  Massachusetts/     A  passenger 
was  arrested  by  the  conductor,  who  was  a  railroad  po- 
lice officer,  for  riding  on  a  train  with  intent  to  evade 
payment  of  fare,  was  oiveu  into  the  custody  of  the  po- 
lice, and  was  detained  over  night  at  the  place  of  de- 
tention provided  for  arrested  persons.      He  sued  the 
company  in  contract  for  breach  of  its  contract  to  carry 
him  as  a  passenger.     The  trial  judge  ruled  that  he  Avas 
entitled  to  recover  damages  for  his  arrest  and  impris- 
onment, for  indignities  which  he  contended  he  suffered 
at  the  hands  of  the  police,  for  his  mental  suffering,  and 
for   sickness  produced   by   a   cold  while  imprisoned. 
This  was  held  to  be  error.     The  court  said:     "The  dis- 
tinction between  the  rules  of  damages  applicable  in 
actions  of  contract  and  of  tort  appears  to  have  been 
overlooked  at  the  trial.      \Yithout  inquiring  whether 
all  the  elements  of  damage  admitted   by  the   court 
would  be  competent,  if  this  had  been  an  action  of  tort 
for  an  assault  and  false  imprisonment,  we  are  of  opin- 
ion that  too  broad  a  rule  was  adopted  in  this  case. 
Damages  for  breach  of  contract  are  limited  to  such  as 
are  the  natural  and  proximate  consequences  of  the 
breach,  such  as  may  fairly  be  supposed  to  enter  into 
the  contemplation  of  the  parties  when  they  made  the 
contract,  and  such  as  might  naturally  be  expected  to 
result  from  its  violation.     The  detention  of  the  plain- 
tiff during  the  night,  his  discomforts  in  the  place  of 
detention,  the  cold  which  he  took  by  reason  of  the 
dampness  of  his  cell,  and  the  indignities  he  suffered 
from  the  police  officers,  were  not  the  immediate  conse- 

•t  Mmdrxk  V.  Itailroad  Co.,  133  Mass.  15. 


R  120  CARRIERS  OF  PASSENGERS.  (Ch.  9 

quences  of  the  breach  of  defendant's  contract  to  carry 
the  plaintiff  to  his  destination.  They  were  the  results 
of  intervening  causes,  not  the  primary,  but  the  second- 
ary, effects  of  the  breach  of  contract;  and  are  too  re- 
mote to  come  within  the  rule  of  damages  applicable  in 
an  action  of  contract." 

As  a  general  rule,  however,  the  decision  of  the 
Ilobbs  Case,  where  not  expressly  repudiated  in  the 
United  States,  has  been  neutralized  by  holding  that  ac- 
tions for  failure  to  carry  passengers  to  destination 
sound  in  tort,  and  not  in  contract.  But,  in  the  lan- 
guage of  the  supreme  court  of  Minnesota:  ^  "It  seems 
to  us  that  very  often  a  great  deal  of  time  and  learning 
has  been  unnecessarily  expended  in  discussing  the  ex- 
act nature  of  the  action.  The  important  question,  aft- 
er all,  is  whether  the  injury  was  the  direct  and  proxi- 
mate, or  only  the  remote,  consequence  of  the  wrongful 
expulsion." 

§  120.     SAME— EXPOSURE  FROM  FAILURE  TO  CARRY 
PASSENGER  TO  DESTINATION. 

In  this  country  the  rule  is  that  a  passenger  who  has 
been  wrongfully  compelled  by  the  carrier  to  leave  the 
train  at  a  place  other  than  his  destination  may  recover, 
in  an  action  of  tort,  for  injuries  to  health  from  expo- 
sure necessarily  encountered  in  reaching  his  destina- 
tion. "That  a  person  entitled  to  be  carried  to  his  des- 
tination, if  set  down  at  a  wrong  place,  or  if  removed 
from  the  car  in  which  he  was  being  transported,  be- 

8  Serwe  v.  Railroad  Co.,  48  Minn.  78,  50  N.  W.  1021.     See,  also,  post, 
«.  — ,  "Damages." 
(302) 


Ch.   9)  PROXIMATE    CAUSE.  §    1'20 

fore  tlie  termination  of  the  journey,  would  be  put  to 
serious  inconvenience,  and  would  be  obliged  to  extri- 
cate himself   therefrom,   is   to  be   anticipated.      The 
wrongdoer  is  liable,  not  only  for  those  injuries  which 
are  caused  directly  and  immediately  by  his  act,  but 
also  for  such  consequential  injuries  as,  according  to 
common  experience,  are  likely  to  result.     Nor  is  he  ex- 
onerated from  liability  by  the  fact  that  intervening 
events  or  agencies  contribute  to  the  injury.     The  fact 
that  injury  to  plaintiff  is  immediately  caused  by  her 
own  act  in  walking  would  not  relieve  defendant  from 
liability,  or  make  the  injury  one  that  did  not  directly 
result  therefrom,  if  such  walk  was  practically  neces- 
f<ary,  and  if  plaintiff  was  guilty  of  no  want  of  due  care 
in  undertaking  it."  ^     In  one  of  the  leading  cases  on 
this  subject  in  this  country,  it  was  held  that  in  an  ac- 
tion of  tort  for  setting  down  a  female  passenger  in  the 
nighttime  three  miles  short  of  her  destination,  where- 
by she.  was  compelled  to  walk  home,  damages  are  re- 
coverable for  sickness  and  suffering  resulting  from  a 
miscarriage  caused  by  the  walk,  and  that  the  fact  that 
the  railroad  company's  servants  did  not  know  her  del- 
icate state  at  the  time  does  not  relieve  it  from  liability 
for  the  actual,   direct  consequences  of  the  wrong. - 

§  120.  1  Spicer  v.  Railroad  Co.,  149  Mass.  207,  21  N.  E.  303.  A  pas- 
senger wrongfully  expelled  from  a  street  car  may  recover  for  the 
damages  occasioned,  not  only  by  her  expulsion  from  the  car,  but  also 
by  her  walk  to  her  destination,  where  there  was  no  other  way  or 
means  of  reaching  it.     Id. 

2  Brown  v.  Railroad  Co.,  54  Wis.  342,  11  N.  W.  3.V,.  911,  distinguish 
ing  Hobbs  v.  Railway  Co.,  L.  R.  10  Q.  B.  Ill,  aud  Walsh  v.  Railway 
Co.,  42  Wis.  23,  on  the  ground  that  these  were  actions  for  breach  of 
contract.     The  following  cases  all  hold  that  sickness  caused  by  the 


^  120  CARRIERS  OF  PASSENGERS.  (Cll.  9 

Where  a  jiirl  eight  years  old,  in  poor  health,  is  carried 
more  than  a  mile  past  her  destination,  and  is  pnt  off 
the  train  at  a  place  with  which  she  is  not  familiar,  her 
fri«'ht  and  its  effect  on  her  health  must  be  deemed  the 
proximate  results  of  the  Avrongful  act.'  So,  a  passen- 
o-er  who,  through  the  fault  of  the  railroad  company, 

passenger's  exposure  is  the  proximate  couseqneiice  of  tlie  carrier's  mis- 
conluct  in  putting  him  oft'  at  a  wrong  place.  Lalve  Erie  &  W.  Ry. 
Co.  V.  Close,  5  Ind.  App.  444,  32  N.  E.  r.88:  Cincinnati.  H.  &  I.  R. 
Co.  V.  Eaton,  94  Ind.  474:  International  &  G.  X.  Ry.  Co.  v.  Terry,  62 
Tex.  380;  International  &  G.  N.  Ry.  Co.  v.  Gilbert,  G4  Tex.  536;  Ken- 
tucky Cent.  Ry.  Co.  v.  Riddle  (Ky.)  34  S.  W.  904;  Maloue  v.  Railroad. 
1.52  Pa.  St.  300,  25  Atl.  638.  In  an  action  for  being  wrongfully  ex- 
pel'ed  from  a  street  car,  illne.?s  resulting  from  exposure  to  cold  in 
consequence  of  such  ejectment  is  not  too  remote  a  consequence  for 
damages;  and  where  the  evidence  is  that  the  per.-on  ejected  was  prop- 
erly clothed  for  protection  against  the  severitj'  of  the  weather,  but 
was  in  a  state  of  perspiration,  from  an  ahercation  with  the  conductor. 
Avhen  he  left  the  car,  and  so  liable  to  take  cold,  the  jury  were  justified 
in  finding  that  an  attack  of  rheumatism  and  bronchitis  was  the  nat- 
ural and  probable  result  of  the  ejectment,  and  in  awarding  damages 
therefor.  Toronto  Ry.  Co.  v.  Grimsted,  24  Can.  Sup.  Ct.  570,  affirm- 
ing 21  Ont.  App.  578,  24  Out.  683.  In  an  action  for  being  carried 
past  a  station  several  hundred  yards,  by  reason  of  which  a  passen- 
ger missed  his  conveyance,  and  was  compelled  to  walk  to  his  home 
in  the  nighttime,  over  a  wet  and  muddy  road,  plaintiff  may  show 
that,  being  old  and  feeble,  the  walk  and  exposure  caused  a  sickness 
from  which  the  passenger  never  recovered,  and  wliich  rendered  him 
unfit  for  attending  to  his  business  up  to  the  time  of  his  death.  Louis- 
ville, N.  O.  &  T.  R.  Co.  V.  Mask,  64  Miss.  738,  2  South.  360. 

3  East  Tennessee,  V.  &  G.  R.  Co.  v.  Lockhart,  79  Ala.  315.  Where 
a  caiTier  negligently  puts  a  female  passenger  otf  at  a  station  other 
than  the  one  of  her  destination,  and  the  passenger,  in  consequence 
thereof,  is  compelled  to  I'ide  and  walk,  ui  the  nighttime,  through 
muddy  roads  and  in  wet  weather,  a  sickness  caused  by  friglit,  ex- 
posure, and  fatigue  of  the  journey  is  the  proximate  consequence  of 
the  carrier's  negligence.  Texas  &  P.  R.  Co.  v.  Ilartuett  (Tex.  Civ. 
App.)  34  S.  W.  1057. 
(304) 


Ch.    9)  PROXIMATE    CAUSE.  §    120 

has  been  carried  about  a  mile  past  her  destination,  and 
been  compelled  to  walk  back  that  distance  in  the 
nighttime,  over  two  long  i-ailroad  bridges,  may  recover 
for  sickness  caused  by  the  exposure  and  fright.* 

But  there  is  a  class  of  cases  which  hold  that  a  pas- 
senger who  can  find  shelter  at  the  place  where  he  is 
wrongfully  put  off,  or  who  can  procure  another  convey- 
ance with  which  he  can  reach  his  destiflation  without 
exposure  to  the  elements,  cannot  recover  for  the  con- 
sequences of  an  exposure  voluntarily  encountered  in 
walking  to  his  deJ^tination.  A  duty  rests  upon  the  pas- 
senger to  conduct  himself  prudently  in  the  situation  in 
which  he  has  been  placed,  so  that  his  discomforts  and 
inconveniences  should  not  be  unnecessarily  increased, 
and  to  so  conduct  himself  that  no  danger  should  be 
unnecessarily  run  by  him.^  A  person  upon  whom  a 
wrong  has  been  committed  is  under  an  obligation  to 

4  Galveston.  H.  &  H.  Ry.  Co.  r.  Ci-ispi.  TH  Tox.  230.  11  S.  W.  187. 
A  passenger  who  has  been  caiTied  past  his  desthiatiou.  and  compelled 
to  walk  back  in  the  dark,  about  a  mile,  over  a  muddy,  iinoven  road, 
and  across  a  ravine  under  a  railroad  trestle,  may  recover  for  a  severe 
cold,  caused  by  the  exposure,  culminatins:  in  an  infiaramatiou  of  the 
throat,  and  finally  in  injury  to  tlie  vocal  organs,  and  in  a  nen-<ms 
di.sease  affecting  his  eyes  and  face,  known  as  corea.  where  the  action 
is  in  tort,  though  tlie  declaration  contains  no  specification  of  tlio  nature 
.•ind  kind  of  damages  claimed.  Alabama  *:  \'.  Ky.  Co.  v.  Ilanes,  Ut) 
Miss.  IGO,  13  South.  246. 

5  Childs  V.  Railway  Co.,  77  Hun.  XV.).  2><  N.  Y.  Supp.  S04.  Tor  tin- 
wrongful  act  of  a  railroad  company  in  cMUsiiig  a  passenger  to  alight 
In  the  evening  at  a  station  two  miles  from  her  destination,  no  re<-ov- 
ery  can  be  had  for  injuries  to  plaintiff's  health,  caused  by  walking 
from  such  station  to  her  destination,  where  she  could  have  discovered 
a  place  to  stay  over  night  had  she  inciuircd,  and  she  Uncw  that  Ikt 
health  was  such  that  she  might  be  seriously  affected  by  the  walk.     Id. 

V.  1  FI-T.CAK.PAS.— 20  (305) 


§  120  CARRIERS  OF  PASSENGERS.  (Ch.  9 

lighten  the  consequential  damages  as  much  as  he  can 
by  the  use  of  ordinary  care  and  diligence.  This  ap- 
plies, in  case  of  an  expelled  passenger,  to  the  time  and 
mode  of  traveling  from  the  place  of  his  expulsion  to 
the  station  at  which  he  was  entitled  to  be  set  down. 
It  applies  also  to  fatigue,  hardship,  and  injury  to  his 
health  involved  in  reaching  there.^  A  female  passen- 
ger, who  is  carried  past  her  destination  to  the  next 
station,  where  accommodations  may  be  obtained,  can- 
not recover  for  mental  and  physical  suffering  caused 
by  walking  back  to  her  destination  in  a  bitterly  cold 
night.  The  fact  that  she  did  not  know  that  accommo- 
dations could  be  obtained  does  not  excuse  her,  if  she 
made  no  inquiry  of  the  station  agent.'^     So  the  failure 

6  Georgia  R.  &  B.  Co.  v.  Eskew,  86  Ga.  &41,  12  S.  E.  1061. 

1  Texas  &  P.  Ry.  Co.  v.  Cole,  66  Tex.  562,  1  S.  W.  629.  If  the  fail- 
ure to  malce  an  effort  to  procure  slielter  or  a  conveyance  is  due  to  tlie 
passenger's  negligence  in  not  having  money  with  him  to  pay  therefor, 
it  is  for  the  jury  to  say  whether  the  walli  is  the  result  of  such  negli- 
gence, rather  than  the  proximate  consequence  of  the  removal  from  the 
cars.  Louisville,  N.  &  G.  S.  R.  Co.  v.  Fleming,  14  Lea  (Tenn.)  128,  155. 
Though  a  passenger  is  wrongfully  ejected  from  a  train  at  a  station 
short  of  his  destination,  yet  he  cannot  recover  for  the  hardship  sustain- 
ed in  a  drive  of  45  or  50  miles,  begun  late  in  the  afternoon,  not  to  his 
destination,  but  to  a  place  away  from  the  railroad,  where  he  wished  to 
inspect  some  land.  Chicago.  B.  &  Q.  R.  Co.  v.  Spirk  (Neb.)  70  N.  W. 
926.  One  who  is  wrongfuUy  ejected  from  a  train  at  a  station,  and  vol- 
untarily leaves  its  shelter,  and  goes  out  and  walks  along  the  track,  all 
night  long,  to  his  destination,  in  a  storm,  cannot  recover  for  injuries 
caused  by  the  exposure.  Corrister  v.  Raih-oad  Co.,  25  Mo.  App.  619. 
The  fact  that  the  driver  of  an  omnibus  compels  a  passenger  to  alight 
a  mile  from  her  residence  on  a  cold  winter's  day,  in  the  streets  of  a 
jiopnlous  city,  on  the  line  of  a  street  railway  which  passes  close  to 
her  home,  does  not  render  the  omnibus  proprietor  liable  for  a  sickness 
from  exposure  to  cold  while  walking  home.     Francis  v.  Transfer  Co., 


Ch.   9)  PROXIMATE    CAUSE.  §1-0 

of  a  railroad  train  to  stop  at  a  station,  and  take  on  a 
passenger,  is  not  the  proximate  cause  of  the  passen- 
ger's sickness,  resulting  from  his  walking  to  the  next 
station  on  an  extremely  cold  day,  but  such  sickness 
must  be  regarded  as  the  result  of  the  willful  and  wan- 
ton act  of  the  passenger,  who  could  have  waited  for  the 
next  train,  due  in  a  few  hours,  or  have  safely  prose- 
cuted his  journey  by  hiring  a  conveyance/  In  a  re- 
cent Indiana  case,  however,  it  is  held  that  where  a 
railroad  compan}^  sets  down  a  passenger  at  a  place  not 
her  destination,  and  the  passenger  secures  a  team,  and 
drives  a  distance  of  five  miles  to  her  destination,  the 
court  cannot  say,  as  matter  of  law,  that  a  sickness 
caused  by  the  cold  and  exposure  of  the  drive  is  due  to 
her  own  negligence,  or  that  it  is  not  the  proximate  con- 
sequence of  the  companj^'s  negligence;  and  a  finding 
by  the  jury  that  the  company  is  liable  will  not  be  dis- 
turbed.^ 

.5  Mo.  App.  7.  A  passenger  expelled  at  a  point  not  a  station  eannot 
rer-over  for  an  aggravation  of  a  disease  caused  by  a  walk  of  six  miles 
to  his  destination,  where  he  might  have  walked  back  a  quarter  of  a 
mile  to  the  station  at  which  he  got  on,  or  three-quarters  of  a  mile  to 
his  own  home,  where  he  could  have  procured  a  conveyance.  Chicago. 
R.  I.  &  P.  R.  Co.  v.  Brisbane.  24  111.  App.  463.  A  i>assonger  wlio  is 
ejected  at  a  point  not  a  station  cannot  recover,  as  part  of  his  dam- 
ages, for  an  aggravation  of  a  disease  caused  by  unnecessarily  walking 
to  his  home,  several  miles,  when  the  station  at  which  he  boarded  the 
train  was  within  a  few  minutes'  walk  of  the  point  of  ejectment  Ohio 
&  M.  R.  Co.  V.  Burrow,  32  111.  App.  161. 

8  Indianapolis,  B.  &  W.  Ry.  Co.  v.  Birney,  71  111.  391. 

9  I'ittslmrgh,  C,  C.  &  St.  L.  Ry.  Co.  v.  Klitch.  11  Ind.  App.  290,  37 
N.  E.  560,  disapproving  Texas  &  P.  Ry.  Co.  v.  Cole,  supra. 

(307) 


§  121  CARRIERS  OF  PASSENGERS.  (Ch.  9 

§  121.     SAME -DANGERS  ENCOUNTERED  FROM  FAIL- 
URE TO  CARRY  TO  DESTINATION. 

If  a  railway  carrier,  instead  of  discharging  a  passen- 
ger at  the  place  of  destination  called  for  by  the  con- 
tract of  carriage,  lands  him  at  another  place,  from 
which  he  cannot  reach  the  place  of  destination  by  any 
practicable  route  without  encountering  a  serious  dan- 
ger, and  the  passenger,  immediately  thereafter,  pro- 
ceeding by  the  only  practicable  route  to  the  place  of 
destination,  witJiout  fault  or  negligence  on  his  part, 
encounters  such  danger,  and  is  hui-t,  the  hurt  is  a  prox- 
imate consequence  of  the  wrong  done  by  the  carrier.' 
Thus  a  passenger  who  is  discharged  at  night  at  a  place 
not  his  destination,  and  who,  in  walking  to  his  destina- 
tion by  the  only  practicable  route,  falls  into  a  ditch,^  or 
a  cattle  guard,'  or  through  a  trestle,*  of  the  existence 
of  which  he  was  ignorant,  may  recover  from  the  rail- 
road company  for  the  injuries  sustained  in  the  fall.° 

§  121.     1  Winkler  v.  Railway  Co.,  21  Mo.  App.  99. 

2  Houston  &  T.  C.  R.  Co.  v.  Smith  (Tex.  Civ.  App.)  32  S.  W.  710. 

•T  Winkler  v.  Railway  Co..  21  Mo.  App.  99;  Evans  v.  Railway  Co- 
ll Mo.  App,  4G3;  New  York,  C.  &  St.  L.  R.  Co.  v.  Doane,  115  Ind.  435, 
442,  17  N.  E.  913. 

i  Houston  &  T.  C.  Ry.  Co.  v.  Devainy,  G3  Tex".  172. 

B  A  passenger  was  wrongfiilly  eonipelled  to  leave  the  train  in  the 
(lark,  several  hundred  feet  from  the  depot,  and  at  a  point  where  she 
was  compelled  to  walk  along  a  side  track  to  reach  a  highway.  The 
conductor  knew  that  she  would  be  compelled  to  cross  a  cattle  guard, 
but  of  this  fact  she  was  ignorant.  She  fell  into  it,  and  was  very 
much  friglitened  by  the  placing  of  cars  on  the  side  track,  while  she 
was  in  the  cattle  guard;  some  of  the  cars  approaching  within  100 
feet  of  her.  Held,  that  the  falling  into  the  cattle  guard,  and  the 
fright  caused  by  the  close  approach  of  the  cars,  were  the  proximate 
(308) 


Ch.   9)  PROXIMATK    CAUSE.  §    121 

But  a  passenger  who  knows  of  the  existence  of  the 
danger,  and  voluntarily  chooses  to  encounter  it,  as- 
sumes the  risk  in  getting-  off  at  the  wrong  place,  with- 
out requesting  to  be  set  down  at  his  destination." 
This  principle  is  illustrated  in  a  Michigan  case.  A 
passenger  was  carried  some  distance  past  his  station 
on  a  dark  night,  and  on  leaving  the  car  he  was  misin- 
formed by  the  conductor  as  to  where  he  was.  He  was 
well  acquainted  with  the  locality',  and  walked  souther- 
ly along  the  track  to  reach  a  highway,  but  after  pro- 
ceeding a  short  distance  he  discovered  that  he  was 
already  south  of  the  highway',  and  retraced  his  steps. 
He  walked  carefully,  because  it  was  very  dark,  and  he 
knew  there  was  an  open  cattle  guard  on  each  side  of 
the  highway.  When  near  the  highway  crossing,  he 
was  misled  apparently  by  a  visual  deception,  and 
moved  forward  under  the  supposition  that  the  cattle 
guard,  upon  the  brink  of  which  he  already  stood,  was 
some  paces  off;  and  this  deception,  combined  with  the 
slipping  of  his  foot,  caused  him  to  fall  into  the  pit.  It 
was  held  that  the  wrong  of  the  company  in  carrying 

consequences  of  the  wrongful  ad  in  fnilins  to  set  her  down  at  the 
depot.  Stutz  V.  Railroad  Co..  73  AA'is.  147.  40  N.  W.  653.  A  passen- 
ger on  a  freight  train  wa.*^  conippllod  by  the  eonihiotor  to  get  off  on  the 
raih-oad  right  of  way,  a  quarter  of  a  mile  from  the  station.  A  barbed 
wii'e  fenee  prevented  his  getting  off  the  right  of  way,  and  lie  started 
towards  the  station,  walking  near  the  train,  imtil  his  progress  was 
barred  by  a  t)ri(lge,  on  which  a  flat  car,  lorniing  part  of  the  ir.iin,  was 
standing.  He  climbed  on  the  flat  cai'.  and,  reaching  its  fnml  end.  lie 
jumped  to  the  ground.  breai<iiig  l)<)tli  bones  of  his  leg.  Held,  that  it 
was  for  the  jury  to  determine  whether  the  carrier's  breach  of  duty  in 
not  landing  him  at  the  station  was  the  i)roxiniate  cause  of  the  injury. 
Adams  v.  Railroad  Co.,  100  Mo.  rc,r>.  \-2  S.  W.  (>;7,  anil  13  S.  W.  .".0(>. 
e  Winkler  v.  Railway  Co.,  21  Mo.  Ai)i).  91). 

(:?00) 


^121  CARRIERS   OF   PASSENGERS.  (Ch.   9 

him  past  his  destination,  and  misinforming  him  as  to 
his  whereabouts,  was  not  the  proximate  cause  of  the 
injury/      So  the  act  of  a  railroad  company  in  carry- 

7  Lewis  V.  Railway  Co.,  54  Mich.  55,  19  N.  W.  744.     Cooley,  C.  J., 
said:     "Before  any  iujuiy  liad  been  sustained,  the  plaintiff  discovered 
where  he  was,  and  started  bark  for  the  road  he  had  intended  to  take. 
Whatever  danger  there  was  to  be  encountered  in  the  way  was  to  be 
found  in  the   cattle  guard,   and   this   he  understood   and   calculated 
upon."     "The  injury  was  an  event  Avhich  happened  unexpectedly  and 
without  fault.     The  defendant  or  its  agents  had  not  produced  the 
deception  or  caused  the  foot  to  slip;    and  such  wrong  as  defendant 
had  been  guilty  of  was  in  no  measure  connected  with  or  related  to  the 
injury,  except  as  it  was  the  occasion  for  bringing  the  plaintiff  where 
the  accident  occurred.     It  was  after  the  plaintiff  had  been  brought 
there  that  the  cause  of  action  unexpectedly  arose.     If  lightning  had 
chanced  to  strike  the  plaintiff  at  that  place,  the  fault  of  defendant. 
an<l  its  relation  to  the  injury,  would  have  been  the  same  as  now,  and 
the  injuiy  could  have  been  charged  to  the  defendant  with  precisely  the 
same  reason  as  now.     If  the  accidental  discharge  of  a  gun  in  the 
hands  of  some  third  person  had  wounded  the  plaintiff  as  he  was  ap- 
proaching the  cattle  guard,  the  connection  of  defendant's  wrong  with 
the  injm-y  would  have  been  precisely  the  same  as  appears  here.     But 
the  proximate  cause  of  the  injury  in  the  one  case  would  have  been 
the  act  of  God;    in  the  other,  inevitable  accident;    but  not  more  plainly 
accident  than  was  the  proximate  cause  here.     Back  of  that  cause  in 
this  case  were  many  others,  all  conducing  to  bring  the  plaintiff  to  the 
place  of  the  danger  and  the  injury.     The  act  of  the  defendant  was  the 
last  of  a  long  sequence,  but,  as  between  the  causes  which  precede  the 
])roximate  cause,  the  law'  cannot  select  one,  rather  than  any  other, 
as  that  to  which  the  final  consequence  shall  be  attributed;    and  it 
stops  at  the  proximate  cause,  because  to  go  back  of  it  would  be  to 
enter  upon  an  investigation  which  would  be  both  endless  and  useless." 
A  passenger,  whose  train  had  gone  about  500  yards  beyond  his  sta- 
tion, got  off  voluntarily,  without  being  deceived  by  the  conductor  as 
to  his  whereabouts.     In  walking  back  to  the  station  in  the  dark,  he 
fell  through  a  bridge.     Held,  that  he  could  not  recover,  because  by 
voluntai-ily  getting  off  the  train  he  waived  the  contract  to  be  put  off 
at  tlie  regular  stopping  place,  and  assumed  the  risk  incident  to  getting 


^j^     9>)  PROXIMATE    CAUSE.  ^       - 

ino-  a  six  Tear  old  .uirl  and  her  father  to  the  station  be- 
yond the  one  to  which  it  had  agreed  to  carry  them  is 
not  the  proximate  cause  of  an  injury  to  the  child,  who 
while  walking  back  along  the  track,  became  frightened 
by  the  approach  of  an  engine  on  a  parallel  track,  broke 
away  from  her  father,  and  ran  in  front  of  the  engme. 
Although  a  conductor  is  guilty  of  a  wrongful  act  m 
requiring  a  female  passenger,  16  or  17  years  old,  to  get 
off  the  train,  in  the  nighttime,  before  reaching  her  des- 
tination, a  rape  committed  on  her  by  a  male  passenger, 
who  also  left  the  train  at  that  station,  and  who  de- 
coyed her  into  a  saloon  under  the  pretense  of  conduct- 
ing her  to  an  hotel,  is  not  the  direct  and  immedmte 
consequence  of  the  conductor's  wrongful  act,  where  it 
appears  that  such  station  is  not  an  inappropriate  or 
unsafe  place  for  a  youthful  and  inexperienced  female, 
traveling  alone,  to  remain  between  trains.^      The  neg- 
lio-ence  of  a  railroad  company  in  carrying  a  passenger 
hcalf  a  mile  bevond  her  destination  is  not  the  proximat.. 
cause  of  an  injury  sustained  from  her  manner  of  alight- 
ing, and  not  due  to  any  defect  in  the  place  of  alight- 


ing.^" 


,     Ai      r,iif  p   X^  «?  F  Rr  Co.  V.  Jordan  (Tex.  Civ.  App.) 
off  whore  he  did.     Gulf,  u  &  ^•  i  •  ^.^-  '-"• 

33  S.  W.  GOO. 

8  Benson  v.  Railroad  Co..  98  Cal.  4.5.  32  Pac.  809. 

»  Sira  V.  Railroad  Co.,  115  Mo.  127.  21  S.  W.  905. 

10  Texas  &  P  Ry.  Co.  v.  Woods,  8  Tex.  Civ.  App.  462,  28  S.  ^^  .  41b. 

W  Je  a  ;:«■  rightfully  on  a  train  leave,  it  in  o.e.ience    o    he 

conductor's  order,  without  any  physical  force  being  us,nl,  an  in.pn-y 

Gained    >v  the  passenger  by  slipping  as  he  is  descending  tl.e  car 

s  is  no     bo  proxin.ate  consequence  of  his  wrongful  ren.oval  froin 

c  Viiliamson  v.  Railway  Co..  17  U.  C.  C.  P.  615.     Negbgen 

r^r^in^a  passenger  beyond  his  s.ation  is  not  tbe  proxn..e  c.u.e 


§122  CARRIERS   OF  PASSENGERS.  (Ch.    9 

§  122.     SAME— UNUSUAL     CONSEQUENCES   OF     PER- 
SONAL INJURIES. 

As  a  general  proposition,  one  who  wrongfully  in- 
flicts a  personal  injury  on  another  is  liable  for  all  the 
results  on  the  human  system  produced  by  that  injury, 
though  such  results  do  not  at  once  fully  manifest  them- 
selves.  Thus,  where  a  blow  on  the  head  produces  a 
degeneration  or  impairment  of  health  of  the  blood  ves- 
sels of  the  brain,  and  finally  one  of  the  blood  vessels 
is  ruptured,  causing  paralysis,  the  paralysis,  though 
not  occurring  until  seven  months  after  the  injury,  may 
be  ascribed  to  it  as  the  proximate  cause.^  Where 
pneumonia,  caused  by  an  injury  received  in  the  upset- 
ting of  a  stage  coach,  has  developed  into  an  incurable 
disease  of  the  lungs,  such  disease  may  be  considered 
a  proximate  consequence  of  the  injury.^  Whether  or 
not  the  failure  of  a  railroad  company  to  keep  its  sta- 
tion open,  as  required  by  statute,  is  the  proximate 
cause  of  an  illness  of  a  passenger  from  exposure  while 
standing  on  the  platform,  in  inclement  weather,  wait- 
er an  injury  sustained  by  tlie  passenger  in  attempting  to  get  off  the 
train  when  it  stopped  on  a  bridge  for  the  purpose  of  taking  on  water. 
Illinois  Cent.  K.  Co.  v.  Green,  81  111.  19. 

§  122.  1  Bishop  V.  Railway  Co.,  48  Minn.  2G,  50  N.  W.  927.  Where 
a  blow  received  in  a  collision  produces  a  bruise  extending  from  a  lit- 
tle below  the  lower  rib  to  the  shoulder  blade,  is  followed  by  a  swell- 
ing, afterwards  by  pleurisy,  succeeded  by  consumption,  from  which 
th(  injured  person  dies  10  months  after  the  accident,  it  is  a  ques- 
tion for  tilt'  jury  wlietlier  tlie  death  was  the  proximate  consequence 
of  the  collision.  Hurley  v.  Brewing  Co.,  43  N.  Y.  Supp.  259,  13  App. 
Div.  107. 

2  Sliafer  v.  Gilmer,  13  Nev.  331). 
(312) 


Ch.   9)  PROXIMATE    CAUSE.  §    122 

ing  for  a  delayed  train,  is  a  question  for  the  jury.'  It 
has  even  been  held  that  where  an  injury  inflicted  by 
the  negligence  of  another  is  so  serious  as  to  produce 
death  without  a  surgical  operation,  and  the  injured 
person  employs  a  competent  and  skillful  surgeon,  and 
dies  as  the  result  of  the  operation,  the  original  injury 
is  the  proximate  cause  of  the  death,  though  the  sur- 
geon made  a  mistake  of  a  nature  which  might  have 
been  made  by  the  most  skillful  surgeon.* 

Injuries  to  women,  while  traveling,  have  given  rise  to 
some  conflicting  decisions.  It  may  now  be  taken  as  the 
settled  doctrine  that  where  a  physical  injury  to  a  female 
passenger  causes  a  miscarriage,  the  carrier  is  liable  for 
the  sickness  and  suffering  resulting  therefrom,  though 
its  servants  were  ignorant  of  the  woman's  condition  at 

3  Boothby  v.  Railway,  6G  N.  H.  :U2,  34  Atl.  ir,7.  The  ncsli^Ji'iiee 
of  a  railroad  company  in  falling  to  lieat  a  mail  train  in  the  winter 
will  render  it  liable  for  the  sickness  of  a  mail  agent  caused  thereby, 
resulting  in  lo'-s  of  the  power  of  speech,  unless  his  own  negligence 
concurred  in  bringing  on  the  illness.  Tnrrentine  v.  Railroad  Co.,  92 
N.  C.  638.  Where  the  failure  of  a  sleeping-car  company  to  properly 
heat  its  car  brings  on  a  violent  cold,  and  produces  permanent  injury 
to  plaintiffs  eye,  the  question  whether  the  injury  to  the  eye  is  too 
remote  as  an  element  of  damages  is  for  tlie  jury,  and  not  the  court. 
Hughes  V.  Car  Co.  (C.  C.  Mo.)  74  Fed.  4tMJ.  If  erysipelas  springs 
from  the  Injury,  the  danger  of  that  disease,  as  well  as  the  sufferings 
produced  by  it,  c-onstituto  a  portion  of  the  injury  itself.  Houston  & 
T.  C.  Ry.  Co.  v.  Leslie.  57  Tex.  83. 

*  Sauter  v.  Railroad  Co..  66  N.  Y.  .")(),  attirming  6  Hun,  446.  "He 
M-ould  have  died  without  the  operation.  Assuming  that,  by  mistake 
of  the  surgeon,  the  operation  was  not  successful,  can  it  he  justly  said, 
In  the  first  place,  that  tlic  surgeon,  and  not  the  injury,  killed  him; 
and,  in  the  second  place,  tliat  tlic  surgeon  is  to  be  regarded  as  a  re- 
sponsiljle  intervening  tliird  person,  within  the  rule  referred  toV 
There  is  no  authoritv  that  supports  such  a  proposition." 

(313) 


§  122  CARRIERS  OF  PASSENGERS.  (Ch.  9 

the  time  of  the  injury.  "To  hold  otherwise  would  be 
to  require  every  pregnant  w^omau  to  refrain  from  trav- 
el, to  take  all  the  risk  of  negligence  of  public  carriers, 
or  to  proclaim  her  condition  to  the  servants  of  the  car- 
rier. We  are  not  willing  to  sanction  by  our  authority 
a  rule  that  would  so  shock  the  delicacy,  dignity,  and 
sense  of  justice  of  our  'honorable  women,  not  a  few\'  "  * 
But  in  such  a  case  damages  cannot  be  recovered  for 
loss  of  the  unborn  child. '^  Where  injuries  received  by 
the  sudden  starting  of  a  street  car  while  a  passenger 
is  about  to  board  it  produces  a  premature  birth  a  few 
days  later,  followed  by  tetanus,  causing  death,  and 
there  is  evidence  that  tetanus,  though  comparatively 
rare,  is  one  of  the  natural  and  probable  consequences 
to  be  apprehended  from  childbirth  and  miscarriage,  the 
question  whether  the  injuries  received  in  the  street 
car  were  the  proximate  cause  of  the  death  is  for  the 
jury.^  In  this  connection,  a  Colorado  case  at  variance 
with  these  decisions  should  be  noticed.  A  sleeping 
car  caught  fire  on  a  bitterly  cold  night  in  January.     A 

6  Mann  Boudoir  Co.  v.  Dupree,  4  C.  C.  A.  540,  54  Fed.  646.  See, 
also,  Sawyer  v.  Dulany,  30  Tex.  479. 

6  Butler  V.  Railroad  Co.,  148  N.  Y.  417.  :is  X.  E.  4.54.  reversing  4 
Misc.  Rep.  401.  24  N.  Y.  Supp.  142.  "It  is  not  in  tlie  interest  of  jus- 
tice to  extend  the  field  of  speculation  in  jury  trials  beyond  the  present 
limits,  and  to  sustain  the  ruling  in  this  case  would  go  beyond  what 
has  liitherto  been  sanctioned  by  the  courts." 

'  Brasliear  v.  Traction  Co.  (Fa.  Sup.)  oC.  Atl.  914.  In  this  case  it 
was  said:  "Tlie  cau.sal  connection  was  sliown.  and  the  continuity 
of  effect  was  traced  through  the  succession  of  events.  No  other 
cause  of  death  was  assigned.  True,  it  was  shown  that  the  disease 
was  caused  l)y  specific  infection,  but  by  the  same  witnesses  it  wa.s 
shown  that  the  miscarriage  made  the  deceased  especially  liable  to 
Infection." 

(314) 


Ch.   9)  PROXIMATE    CAUSE.  §    122 

female  passenger,  scantily  clad,  and  in  stocking  feet, 
on  leaving  tJie  car,  was  compelled  to  stand  for  a  minute 
or  two  on  the  platform.  By  reason  of  this  exposure, 
she  caught  a  severe  cold,  which  caused  the  cessation 
of  her  menses,  and  resulted  in  a  long  period  of  illness. 
It  was  held  that  the  exposure  was  not  the  proximate 
cause  of  the  illness,  because  her  condition  at  the  time 
was  an  independent  intervening  cause,  appertaining 
exclusivelv  to  herself,  with  which  the  railroad  com- 
pany  had  no  concern,  and  to  which  it  sustained  no  rela- 
tion, either  by  contract  or  by  the  general  duty  imposed 
by  law  upon  carriers  of  passengers.'  This  decision 
has  been  justly  repudiated,  as  being,  not  only  unsound 
in  point  of  law,  but  as  brutal  and  inhuman.'  The 
physical  condition  of  an  iujul'ed  person  has  never  been 
regarded  as  an  intervening  cause  which  would  shield 
the  wrongdoer  from  the  consequences  of  his  wrongful 
act;  and  it  would  be  surprising,  indeed,  if  this  decision 
were  followed  anywhere  in  the  United  States. 

Suppose  a  personal  injury  undermines  the  vitality 
of  the  injured  person,  so  that  he  becomes  affected  with 

«  Pullman  Palace-Car  Co.  v.  Barker,  4  Colo.  344. 

9  In  Brown  v.  Railway  Co.,  54  Wis.  342,  11  N.  W.  35G,  911,  the 
court  says  of  this  decision:  "It,  in  effect,  says  that,  if  an  individual 
unlawfully  compels  a  sick  and  enfeebled  passenger  to  expose  himself 
to  escape  worse  consequences  from  his  wrongful  act,  he  cannot  re- 
cover damages  from  the  wrongdoer,  because  it  was  hi.s  sick  and  en- 
feebled condition  which  i-endered  his  exposure  injurious.  Certainly 
Buch  a  doctrine  does  not  commend  itself  to  those  kinder  feelings 
which  are  common  to  humanity,  and  I  know  of  no  other  case  which 
sustains  its  conclusions."  In  Terro  Haute  &  I.  R.  Co.  v.  Buck,  im 
Inil.  .'540,  it  is  said  that  the  Colorado  case  is  not  sustained  by  au- 
thority, nor  can  it  be  supported  on  principle. 

(315) 


§  122  CARRIERS  OF  PASSENGERS.  (Ch.  9 

a  contagious  disease  prevailing  in  the  neighborhood, 
and  he  dies  of  that  disease;  is  the  injury  the  proximate 
cause  of  his  death,  so  as  to  render  the  original  wrong- 
doer liable  therefor?  This  question  has  been  answer- 
ed in  the  afiirmative/°  A  passenger,  alighting  from 
a  train  negligently  stopped  on  a  trestle,  fell  through 
the  trestle.  He  was  picked  up  in  a  delirious  condi- 
tion, suffering  from  a  concussion  of  the  brain  and  bod- 
ily injuries.  These  injuries  and  the  shock  to  his  nerv- 
ous system  put  him  in  a  condition  favorable  to  take 
any  disease  prevailing  in  the  community.  He  grad- 
ually drifted  into  malarial  troubles,  which  were  then 
rife  in  the  neighborhood,  and  he  died  of  malarial  fever 
about  six  weeks  after  the  injury  was  sustained.  The 
death  was  held  to  be  the  proximate  consequence  of  the 
injury,  in  analogy  to  the  rule  of  the  criminal  law  thus 
stated  by  Mr.  Bishop:  "Whenever  a  blow  is  inflicted 
under  circumstances  to  render  the  party  inflicting  it 
criminally  responsible  if  death  follows,  he  will  be 
deemed  guilty  of  the  homicide,  though  the  person  beat- 
en would  have  died  from  other  causes,  or  would  not 
have  died  from  this  one  had  not  others  operated  with 
it;  provided  the  blow  really  contributed,  either  medi- 
ately or  immediately,  to  the  death  in  a  degree  suflftcient 
for  the  law's  notice."  ^^  So  it  has  been  held  that  the 
fact  that  a  passenger,  when  injured,  was  suffering  with 
pneumonia,  and  afterwards  died  of  that  disease,  does 
not  relieve  the  comi^any  from  liability,  if  the  injury  so 

10  Terre  Haute  &  I.  R.  Co.  v.  Buck,  96  Ind.  34G. 
112  Bish.  Cr.  Law,  §  637.     lu  Beanchamp  v.  Sagiuaw  M.  Co.,  50 
Mifli.  163,  1.")  N.  W.  6.J,  a  substantially  s,iiiiilar  ruling  was  made. 
(.310) 


Ch.   0)  PROXIMATE    CAUSE.  §    123 

impaired  her  strength  and  vital  forces  as  to  render  the 
disease  incurable,  when,  without  the  injury,  it  would 
have  A-ielded  to  treatment.^* 


§  123.     SAME— PREDISPOSITION  TO  DISEASE. 

Though  a  person  has  a  predisposition  to  disease,  yet 
if  an  injury  caused  by  defendant's  negligence  excites 
or  develops  the  germs  of  disease,  defendant  is  liable  to 
the  full  extent  of  the  injury.^  The  duty  of  care  and  of 
abstaining  from  the  unlawful  injury  of  another  applies 
to  the  sick,  the  weak,  the  infirm,  as  fully  as  to  the 
strong  and  healthy;  and,  when  that  duty  is  violated, 
the  measure  of  damages  is  the  injury  done,  even  though 
it  might  not  have  resulted  but  for  the  peculiar  physical 
condition  of  the  person  injured,  or  may  have  been  ag- 
gravated thereby.^      A  passenger  injured  by   negli- 

12  Ix)uisville  &  X.  R.  Co.  a-.  Jones,  83  Ala.  376,  3  South.  902.  It 
was  further  said  in  this  case  that  the  fact  th.it  a  passenger,  when 
injured  iu  a  laihvay  aecitlent,  was  sufferinj;  from  an  incurable  dis- 
ease, which  would  ultimately  cause  death,  does  not,  as  matter  of  law, 
relieve  the  company  from  liability,  if  the  injuries  hastened  death. 
But  see  post,  §  ."iT!*. 

§  123.  1  Louisville.  N.  A.  &  C.  Ry.  Co.  v.  Falvey,  104  Ind.  409, 
427.  3  N.  E.  389,  and  4  X.  E.  908.  Where  a  disease  caused  by  the 
injury  supervenes,  as  well  as  where  tlie  disease  exists  at  the  time  of 
the  injm-y.  and  is  aggravated  by  it,  the  plaintiff  is  entitled  to  full 
compensatory  ilamages.  Ohio  &  M.  R.  Co.  v.  Hecht,  115  Ind.  443,  17 
N.  E.  297;  Louisville,  X.  A.  &  C.  R.  Co.  v.  Jones,  108  Ind.  551,  557, 
9  X.  E.  470. 

2  Lapleine  v.  Steamship  Co.,  40  La.  Ann.  mi,  4  South.  875.  "Both 
on  principle  and  autliority,  an  injured  person  may  recover  compen- 
satory damages  for  injuries  su-tained,  although  the  wrongdoer  did 
not  know  or  could  not  foresee  that  tlie  special  or  particular  injm-y 
would  be  greater  to  the  person  upon  whom  the  wrong  was  actually 

(-IT) 


§  123  CARRIERS  OF  PASSENGERS.  (Ch.  9 

gence  of  tlic  carrier  is  entitled  to  recover  the  full  extent 
of  the  injury  so  caused,  without  regard  to  whether, 
owing  to  his  previous  condition  of  health,  he  is  more  or 
less  liable  to  injury.^  Thus  the  liability  of  a  railroad 
company  for  a  personal  injury  is  not  diminished  by  the 
fact  that  plaintiff  was  at  the  time  suffering  from  a 
syphilitic  disease,  which  aggravated  the  injuries  sus- 
tained, or  rendered  them  more  difficult  to  cure.*  So, 
where  a  cancer  develops  as  the  result  of  a  blow  on  the 
breast  of  a  female  passenger  by  being  thrown  against 
the  platform  of  a  street  car  in  an  attempt  to  alight, 
the  cancer  properly  forms  an  element  of  damages  to  be 
considered  in  awarding  damages,  though  plaintiff  was 
predisposed  to  that  disease.^  So  where  a  blow  on  the 
head  develops  insanity,  the  fact  that  the  injured  person 

inflicted  tlian  to  one  in  full  strengtli  and  robust  hiealtli.  A  person, 
feeble  or  strong,  young  or  old,  is  entitled  to  recover  full  compensation 
for  the  injuries  actually  sustained  by  the  act  of  the  wrongdoer." 
Louisville,  N.  A.  &  C.  Ky.  Co.  v.  Wood,  113  Ind.  544,  567,  14  N. 
E.  572,  and  16  N.  E.  1J)7.  It  is  no  defense  to  an  action  against  a 
common  carrier  for  injuries  received  by  a  passenger  by  reason  of 
its  negligence  that  the  injuries  would  not  have  occurred,  or  would 
not  have  been  so  great,  had  the  passenger  been  in  good  health. 
Owens  V.  Railway  Co.,  95  Mo.  169,  8  S.  W.  350. 

3  Purcell  V.  Railway  Co.,  48  Minn.  184,  50  N.  W.  1034. 

*  Bi-own  V.  Railroad  Co.,  66  Mo.  588.  Though  the  damage  done  to 
a  child  by  an  injury  appears  to  be  aggravated  by  a  latent  hereditary 
hysterical  diathesis,  which  had  never  exhibited  itself  before  the  ac- 
cident, and  might  never  have  been  developed  but  for  it,  the  party  in 
fault  will  be  held  for  the  entire  damage  as  the  direct  result  of  the  acci- 
dent.    Lapleine  v.  Steamship  Co.,  40  La.  Ann.  661,  4  South.  875. 

B  Baltimore  City  Pass.  Ry.   Co.  v.  Kemp,  61  Md.  74.     "That  the 

female  plaintiff  may  have  had  a  tendency  or  predisposition  to  cancer 

can  afford  no  proper  ground  of  objection.     She,  in  common  with  all 

other  people  of  the  community,  had  a  right  to  travel  or  be  carried  in 

(318) 


Ch.   9)  PROXIMATE    CAUSE.  §    123 

liad  a  tendency  to  insanity  will  not  relieve  defendant 
from  liability,  though  a  blow  on  the  head  of  a  well  per- 
son would  not  have  produced  that  result."  And  the 
right  of  a  passenger  to  recover  for  an  injuiy  caused  by 
the  negligence  of  a  railroad  company  is  not  impaired 
by  the  fact  that  he  was  afflicted  with  Bright's  disease 
when  injured.'  So,  where  a  person  wrongfully  on  a 
train  is  ejected  with  unnecessary  violence,  the  com- 
pany is  liable  for  aggravation  of  hernia,  with  which  he 
had  been  suffering,  though  unknown  to  it,  and  though 
not  cautioned  by  him  in  reference  thereto.®  So  the 
aggravation  and  reopening  of  an  old  wound  in  a  rail- 
road accident,  and  the  increased  pain  and  medical  at- 
tention necessitated  thereby,  may  be  taken  into  consid- 
eration by  the  jury  in  assessing  damages.®  Where  a 
person  already  ill  is  injured  through  another's  negli- 

the  cars  of  defendants,  and  she  had  a  right  to  enjoy  that  privilege 
Avithout  incurring  the  peril  of  receiving  a  wrongful  injury  that  might 
result  in  intlaming  and  developing  the  dormant  germs  of  a  fatal  dis- 
ease. It  is  not  for  the  defendants  to  say  that  because  they  did  not, 
or  could  not  in  fact,  anticipate  such  a  result  of  their  negligent  act, 
they  must  therefore  be  exonerated  from  liability  for  such  conse- 
quences as  ensued.  They  must  be  taken  to  know,  and  to  contem- 
plate, all  the  natural  and  proximate  consequences,  not  only  that  cer- 
tainly would,  but  that  .probably  might,  flow  from  their  wrongful  act. 
The  defendants  must  be  supposed  to  know  that  it  was  the  right  of  all 
(lasses  and  conditions  of  people,  whether  diseased  or  otherwise,  to 
be  carried  in  their  cars,  and  it  must  also  be  supposed  that  they  knew 
That  a  personal  injury  inflicted  upon  any  one  with  a  predisposition  or 
tendency  to  cancer  might,  and  probably  would,  develop  the  disease." 

6  .Teffcisf.nville,  M.  &  I.  K.  Co.  v.  Kilcy,  :iU  Ind.  .",08,  .^)S.'>. 

T  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Snyder,  117  1ml.  -ilio,  20  N.  E. 
284. 

8  Coleman  v.  Knihnad  Co.,  lUC  Mass.  IGO,  179. 

»  Montgomery  &  E.  II.  Co.  v.  Mallette,  02  Ala.  209,  9  South.  363. 

(319) 


§  123  CARRIERS  OF  PASSENGERS.  (Ch.  9 

gence,  additional  expenses  of  the  illness,  whicli  are 
caused  bj  the  injury,  are  an  element  of  damages/" 

But  it  has  been  held  that  plaintiif  can  recover  only 
for  such  injuries  as  were  sustained  by  reason  of  the 
accident  in  suit;  and  hence  the  fact  that,  at  the  time  of 
such  an  accident,  he  had  not  recovered  from  other  in- 
juries, should  be  considered  by  the  jury  in  mitigation 
of  damages.^^  And  in  all  cases  the  connection  l)e- 
tween  the  injury  and  the  disease  alleged  to  have  been 
caused  thereby  must  be  shovi'n.  The  court  cannot  as- 
sume that  the  injury  caused  or  predisposed  a  person  to 
disease,  in  the  absence  of  evidence  on  this  point.  This 
principle  is  illustrated  by  a  recent  Louisiana  case.  A 
passenger,  wrongfully  expelled  from  a  train  at  a  way 
station,  remained  in  the  station  house  about  an  hour, 
and  returned  to  the  point  of  his  dei)arture  in  the  ca- 
boose of  a  freight  train.  The  night  was  cold,  and, 
when  he  returned  home,  he  complained  of  chilliness, 
and,  two  days  later,  of  cold  and  indisposition.  His 
ailment  increased  from  day  to  day,  and  17  days  aftet 
his  ejection  he  took  to  bed,  ill  with  typhoid  fever,  then 
prevalent  in  the  community,  and  he  died  of  that  dis- 
ease. The  medical  expert  testimony  was  that  typhoid 
fever  is  caused  by  the  reception  of  poison  germs  in  the 
system,  either  by  the  air  we  breathe  or  the  water  we 

10  Emery  v.  Railroad  (N.  H.)  36  Atl.  3t>7. 

11  Louisville  &  N.  R.  Co.  v.  Kingman  (Ky.)  35  S.  W.  2CA.  Where 
a  plaintiff,  suing  for  permanent  personal  Injuries,  has  Bright's  dis- 
ease of  the  kidneys  at  the  time  of  the  trial,  and  it  appears  that  this 
disease  was  not  caused  by  the  injuries,  that  fact  should  be  taken  into 
consideration  in  determining  his  expectancy  of  life  and  loss  of  earn- 
ing power.     Bunting  v.  Hogsett,  139  Pa.  St.  3(33,  21  All.  31,  33,  34. 

(320) 


Ch.   9)  PROXIMATK    CAUSE.  §    124 

drink,  and  that  it  could  not  be  produced  by  exposure 
to  cold,  thouoli  the  period  of  incubation  might  be  af- 
fected thereb}-.  It  was  held  that  the  disease  was  not 
traced  to  the  ejection,  and  the  consequent  exposure, 
as  the  proximate  cause." 

§  124.     SAME— PECUNIARY  LOSS. 

As  to  pecuniary  losses  suffered  by  reason  of  a  wrong- 
ful expulsion  from  the  train,  or  of  delay  in  transporta- 
tion, the  rule  in  Hadley  v.  Baxendale,  heretofore  stat- 
ed,^ has  in  the  main  been  strictly  applied.  A  passen- 
ger who  has  taken  passage  on  a  railway  train,  and  who 
has  failed  to  reach  his  destination  because  there  ^as 
no  connecting  train  at  an  intermediate  station,  may 
recover  the  expense  he  has  been  put  to  in  order  to 
arrive  at  his  destination;  but  he  cannot  recover  for 
loss  of  profits  owing  to  his  inability  to  keep  his  appoint- 
ments with  his  customers,  as  these  are  too  remote. - 
So,  in  an  action  for  delay  in  the  transportation  of  a 
theatrical  manager  and  his  troupe,  he  cannot  recover 
for  loss  sustained  through  inability  to  give  a  perform- 
ance as  advertised,  and  for  which  tickets  to  the  amount 
of  |2S8  had  been  sold,  and  which  amount  he  was  com- 
pelled to  refund,  where  the  railroad  company  was  ig- 

12  Randall  v.  Railroad  Co.,  -io  La.  Ann.  778,  13  South.  166.  "We 
w-ill  not  assume  that  the  exposure  was  an  inciting  cause,  without  tes- 
timony connecting  the  disease,  in  its  course,  with  such  a  disease  as 
exposure  may  produce,  or  williout  tlae  least  showing  that  exposure 
had  a  lowering  effect  on  the  system,  or  prodi-sposed  him  to  talie  the 
di.sea.se." 

g  124.  1  Ante,  §  liy.  As  to  damages  for  failure  to  carry  to  des- 
tination, for  ejection,  etc..  see  post,  c.  36. 

2  Hamlin  v.  liailway  Co.,  1  Hurl.  &  N.  408. 

V.  1  FET.CAR.PA,S. — 21  (321) 


§  124  CARRIERS  OF  PASSENGERS.  (Ch.  9 

noraut  of  tliis  fact  at  the  time  it  undertook  their  trans- 
portation.^ The  loss  of  a  job  of  worl-:,  occasioned  by 
a  passenger's  expulsion  from  a  train,  and  his  delay  at 
the  station,  is  too  remote  to  be  considered  as  an  ele- 
ment of  damages.*  And  the  fact  that  a  passenger 
was  compelled  to  borrow  money  to  pay  fare  illegally 
exacted  is  too  remote  to  afford  a  basis  for  the  assess- 
ment of  damages.^  So  wrongful  imprisonment  for 
one  night  is  not  the  proximate  cause  of  loss  of  earnings 
by  plaintiff  for  nine  months,  resulting  from  his  loss  of 
employment.^  But  where  a  miner  purchases  a  ticket 
to  travel  to  his  w^ork  by  a  train  timed  to  start  in  ample 
time  for  that  purpose,  and  he  loses  a  day's  work  be- 
cause of  the  nonarrival  of  the  train,  his  loss  of  wages 
for  that  day  is  the  proximate,  and  not  the  remote,  con- 
sequence of  the  delay,  and  he  may  recover  the  amount 
of  his  wages  from  the  railroad  company.'^ 

Where  a  passenger  is  wrongfully  removed  from  a 
train,  but  without  any  more  force  than  is  necessary^ 
the  loss  of  a  pair  of  race  glasses,  which  he  left  behind 
him  when  removed,  is  not  the  natural  or  probable  con- 
sequence of  defendant's  act,  since,  if  he  had  applied  to 
be  allowed  to  get  the  glasses,  or  asked  one  of  the  pas- 
sengers to  hand  them  to  him,  this  would  have  been 
done.® 

«  Georgia  R.  R.  v.  Hayden,  71  Ga.  518. 

*  Carsten  v.  Railroad  Co.,  44  Minn.  454,  47  N.  W.  49,  citing  Brown 
V.  Cnmmings,  7  Allen  (Mass.)  507. 
B  Hoffman  t.  Railway  Co.,  45  Minn.  53,  47  N.  W.  312. 
6  Carpenter  v.  Railroad  Co.,  13  Aiip.  Div.  328,  43  N.  Y.  Supp.  203. 
1  Cooke  V.  Railway  Co.,  57  J.  P.  3«8. 
8  Glover  v.  Railway  Co.  (lS(i7)  L.  R.  3  Q.  B.  25. 
(322) 


Cb.    10)  CONTRIBUTORY   NEGLIGENCE.  §    125 

CHAPTER  X. 

CONTRIBUTORY  NEGLIGENCE. 

§  125.  The  Common-Law  Doctrine. 

126.  WUlful  Injuries. 

127.  Definition. 

12S.  Degree  and  Standard  of  Care. 

129.  Duty  to  Use  Senses  and  Ascertain  Facta. 

130.  Reliance  on  Carrier. 

131.  Same — On  Carrier's  Servants. 

132.  Use  of  Station  Platform— Knowledge  of  Defects. 

133.  Using  Uulighted  Premises. 

134.  Standing  near  Edge  of  Station  Platform. 

135.  Standing  between  Car  Tracks. 

136.  Crossing  Railroad  Track  at  Station. 

137.  Same— At  Intermediate  Station. 

138.  Same— Stepping  from  Car  to  Track. 

139.  Same— Street  Cars. 

140.  Walking  along  or  near  Track. 

141.  Crawling  under  or  between  Cars. 

142.  Boarding  Car  Ahead  of  Time. 

143.  Boarding  Car  Not  Drawn  up  at  Station  Platform. 

144.  Boarding  or  Leaving  Train  on  Wrong  Side,  or  by  Improper 

Entrance  or  Exit. 

145.  Same— Front  Platform  of  Street  Car. 

146.  Alighting  at  Dangerous  Place— Invitation. 

147.  Same— Jumping  from  Car  Steps  to  Ground. 

148.  Boarding  or  Alighting  from  Stationary  Stroot  Car. 

149.  Boarding  or  Alighting  from  Moving  Train. 

150.  Same — Boarding  Moving  Train. 

151.  Same — Alighting  from  Moving  Train. 

152.  Same— Aggravating  Circumstances.  • 

153.  Same— Mitigating  Circumstances. 

154.  Same— Advice  or  Command  of  Train  Hands. 

155.  Same — Statutory  Provisions. 
150.  Boarding  Moving  Street  Car. 

157.  Same— Alighting  from  Moving  Street  Car. 

(323) 


I  125  CARRIERS  OF  PASSENGERS.  (Ch.  10 

S  158.  Same— Front  Platform. 

159.  Same— Passenger  Incumbered  with  Packages. 

160.  Passengers  on  Vessels. 

161.  Boarding  Passenger  Elevator. 

162.  During  Transportation. 

163.  Placing  Hand  in  Door  Jamb. 

164.  Projecting  Limb  or  Head  Outside  of  Car. 

165.  Standing,  or  Occupying  Dangerous  Seat,  in  Car. 

166.  Passing  from  Car  to  Car  on  Moving  Ti-ain. 

167.  Riding  on  Platform. 

168.  Same— Street  Car. 

169.  Same— Front  Platform  of  Street  Car. 

170.  Riding  on  Footbo.ard  or  Steps  of  Car. 

171.  Riding  in  Baggage  Car. 

172.  Riding  in  Other  Places  of  Alleged  Danger. 

173.  Riding  on  Freight  and  Construction  Trains. 

174.  Riding  on  Top  of  Cars. 

175.  Riding  on  Locomotive  or  on  Tender. 

176.  Riding  on  Hand  Car. 

177.  Statutory  Prohibition  against  Riding  in  Dangerous  Places. 

178.  Saving  Human  Life. 

179.  After  the  Injury. 

§  125.     THE  COMMON-LAW  DOCTRINE. 

At  comnion  law,  actionable  negligence  on  defend- 
ant's part  does  not  render  him  liable  for  inju- 
ries to  plaintiff,  if  there  is  contributory  negli- 
gence on  plaintiff's  part.  But  contributory  neg- 
ligence is  no  defense  to  a  ■willful  or  -wanton 
■wrong. 

"It  has  been  a  rule  of  law  from  time  immemorial,  and 
is  not  likely  to  be  changed  in  all  time  to  come,  that 
there  can  be  no  recovery  for  an  injury  caused  by  the 
mutual  default  of  both  parties.  When  it  can  be  showu 
that  it  would  not  have  happened,  except  for  the  culpa- 
ble negligence  of  the  party  injured,  concurring  with 
(324) 


Ch.   10)  CONTRIBUTORY  NEGLIGEXCE.  §    125 

that  of  the  other  party,  no  action  can  be  maintained."  ^ 
Though  this  rule  is  said  to  have  obtained  from  time  im- 
memorial, its  first  definite  formulation,  as  a  part  of  the 
common  law,  is  as  recent  as  the  year  1809.  In  Butter- 
field  V.  Forrester,^  decided  in  that  year,  which  was  an 
action  for  injuries  sustained  by  running  into  an  ob- 
struction in  a  highway.  Lord  Chief  Justice  Ellenbor- 
ough,  in  a.  remarkably  terse  and  lucid  charge  to  the 
jury,  said:  "One  person  being  in  fault  will  not  dispense 
with  another's  using  ordinary  care  for  himself.  Two 
things  must  concur  to  support  this  action, — an  obstruc- 
tion in  the  road  by  the  fault  of  the  defendant,  and  no 
want  of  ordinary  care  to  avoid  it  on  the  part  of  the 
plaintiff."  ^  This  doctrine  of  contributory  negligence 
prevails  in  all  the  states  of  the  American  Union,^ 

§  125.     1  Black,  J.,  in  Railroad  Co.  v.  Aspell,  23  Pa.  St.  147. 

2  11  East,  60. 

8  A  case  decided  in  New  Jersey  two  years  before  Butterfield  v.  For- 
rester is  based  on  the  same  principle.  Defendant  had  talien  plain- 
tiff's flat  from  his  ferry  on  the  Delaware  river,  and  plaintiff,  being 
obliged  to  search  for  the  flat  in  order  to  cross  the  river,  left  his  wagon 
and  horses  on  the  beach.  While  he  was  gone,  the  horses  ran  into  the 
river,  and  were  drowned.  It  was  held  that  defendant  was  not  liable 
for  the  value  of  the  horses,  because  it  was  plaintiff's  own  negligence 
to  leave  them  without  first  securing  them.  Gorden  v.  Butts  (1807) 
2  N.  J.  Law,  242. 

4  It  is  well  settled  at  common  law,  whatever  doubts  may  exist  as  to 
the  justice  of  the  rule,  that  the  party  who  claims  damages  for  the 
neglect  of  duty  of  others  to  exercise  proper  care  cannot  recover  if 
it  appears  that  the  injury  he  sustained  was  in  any  degree  caused  by 
his  own  negligence  or  want  of  proper  care.  Murch  v.  Kaih-oad 
Corp.,  29  N.  H.  9.  One  seeking  to  recover  for  injuries  occasioned  by 
the  negligence  of  another  must  be  shown  to  lie  free  from  negligence 
contributing  in  any  degree  to  occasion  the  injury  complained  of.  Gon- 
zales V.  Railroad  Co.,  38  N,  Y.  440.     One  wlio  lias  by  his  own  ncgli- 

(:i25) 


§  125  CARRIERS  OF  PASSENGERS.  (Cll.  10 

thoiijxh  in  some  it  has  been  considerably  modified  by 
statute.''  Even  in  Louisiana,  tlie  jurisprudence  of 
which  is  founded  on  the  civil,  rather  than  the  common, 
law,  it  is  well  settled  that  contributory  negligence  on 
the  part  of  the  plaintiff  is  a  bar  to  a  recovery,  although 
defendant  be  in  fault.® 

This  principle  of  contributory  negligence  does  not 
rest  on  the  idea  that  one  wrong  sets  off  the  other,  or 
that  one  justifies  the  other.  It  is  founded  on  the 
broader  ground  that,  when  the  negligence  of  the  plain- 
tiff has  contributed  proximately  to  the  injury,  the 
damage  is  considered  of  his  own  producing,  and  it  is 
difficult,  if  not  impossible,  to  determine  the  quantum 
of  injury  which  resulted  from  the  defendant's  tortious 
or  negligent  conduct.  It  is  not  that,  in  such  case,  de- 
fendant has  done  no  wrong.  His  dereliction  of  duty 
may  be  so  patent  as  to  render  it  morally  certain  that, 
without  such  dereliction,  tlie  injury  would  not  have 
resulted.  This  is  not  the  test;  for  it  is  equally  true, 
in  cases  of  proximate  contributory  negligence,  that 
without  the  plaintiff's  fault  the  injury  w^ould  not  have 
resulted.  To  allow  such  plaintiff  to  recover  would  be 
to  permit  a  recovery  for  the  proximate' consequences 

gence  contributed  to  an  injury  of  his  person  cannot  recover  damages 
from  anoflier  person,  who  has  also  heeu  guilty  of  a  negligent  act 
which  concurred  in  producing  the  injury.  Florida  South.  Ry.  Co.  v. 
Hirst,  30  Fla.  1,  11  South.  50G.  Among  the  leading  cases  in  this 
country  are  Robinson  v.  Cone,  22  Yt.  213;  Railroad  v.  Norton,  21 
Pa.  St.  469. 

»  See  post,  c.  13. 

«  Odom  V.  Railroad  Co.,  45  La.  Ann.  1201,  14  South.  734,  and  cases 
cited;    Hanson  v.  Transportation  Co.,  38  La.  Ann.  Ill;    Summers  v. 
Railroad  Co.,  31  La.  Ann.  131). 
(326) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    126 

of  the  plaintiff's  own  negligence/  Hence,  if  the  plain- 
tiff's fault,  of  omission  or  commission,  has  been  the 
proximate  cause  of  the  injury,  he  is  without  remedy 
aiiainst  one  also  in  the  wrong.* 


§   126.     WILLFUL  INJURIES. 

The  doctrine  of  contributory  negligence  is  applicable 
only  to  cases  where  it  is  sought  to  hold  defendant  lia- 
ble on  the  ground  that  he  has  been  guilty  of  negligence. 
Contributory  negligence  is  no  defense  to  an  action  for 

7  Memphis  &  C.  R.  Co.  v.  Copeland,  Gl  Ala.  37G;  Alabama  Great 
South.  R.  Co.  V.  Hawk,  72  Ala.  112.  It  would  certniuly  be  very  un- 
just to  allow  a  person  who  has  sustained  an  injury  by  the  nej:;ligence 
of  another  to  recover  damages  for  such  injury  when  it  is  made  to 
appear  that  he  himself  contributed  by  his  own  negligence  to  the 
cause  of  such  injury,  or  when,  by  proper  care  on  his  part,  he  might 
have  avoided  it  altogether.  This  would,  in  effect,  be  giving  one  com- 
pensation for  his  own  default,  and  would  amount  to  the  offer  of  a 
premium  for  negligence  or  want  of  proper  care  of  one's  own  person, 
Darwin  v.  Railroad  Co.,  23  S.  C.  531. 

8  Little  V.  Hackett,  116  U.  S.  366,  371,  6  Sup.  Ct.  391.  "In  order 
that  a  man's  negligence  may  entitle  another  to  a  remedy  against  him, 
that  other  must  have  suffered  harm  whereof  this  negligence  is  a 
■proximate  cause.  Now  I  may  be  negligent,  and  my  negligence  may 
be  the  occasion* of  some  one  suffering  harm,  and  yet  the  immediate 
cause  of  the  damage  may  be  not  my  want  of  care,  but  his  own.  Had 
I  been  careful,  to  begin  with,  he  would  not  have  been  in  danger;  but 
had  he,  being  so  put  in  danger,  used  reasonable  care  for  his  own 
safety,  or  that  of  his  property,  the  damage  would  not  have  happened. 
Thus,  my  original  negligence  is  a  comparatively  remote  cause  of  the 
harm,  and,  as  things  turn  out,  the  proximate  cause  is  the  sufferer's 
own  fault,  or  rather  (since  a  man  is  under  no  positive  duty  to  be  care- 
ful in  his  own  interest)  he  cannot  ascribe  it  to  the  fault  of  amither. 
In  a  state  of  facts  answering  this  general  description,  the  person 
harmed  is,  by  the  rule  of  the  common  law,  not  entitled  to  any  rem- 
edy."    Pol.  Torts  (Webb's  Ed.)  p.  566. 

(327) 


§126  CARRIERS  OP  PASSENGERS.  (Ch.    lO 

a  willful  wrong.^  Thus  the  doctrine  of  contributory 
negligence  has  no  application  to  an  action  for  an  un- 
lawful and  forcible  ejection  of  a  passenger  from  a  train 
by  the  servants  of  a  railway  company.^  Such  ejection 
is  an  intentional  and  willful  assault,"  and  no  degree  of 
carelessness  on  the  part  of  an  assaulted  person  fur- 
nishes any  excuse  for  an  unlawful  invasion  of  the  right 
of  personal  security."  So,  in  an  action  for  injuries 
to  a  trespasser  riding  under  a  freight  car,  who  was 
pushed  from  the  train  while  in  motion  by  one  of  the 
company's  servants,  the  fact  that  he  may  have  been 
guilty  of  negligence  in  riding  in  a  perilous  position  is 
no  defense/  But  the  omission  of  a  railroad  company 
to  prepare  a  station  house  for  the  comfort  of  its  pas- 
sengers, or  to  have  the  place  lighted  up,  does  not  con- 
stitute such  wanton  or  willful  negligence  as  to  over- 
come the  defense  of  contributory  negligence  in  an  ac- 
tion by  a  passenger  waiting  for  a  train  at  a  station, 
who  stepped  on  the  track  in  front  of  a  moving  locomo- 
tive, plainly  visible  had  he  looked/ 

§  126.  1  Alabama  G.  S.  R.  Co.  v.  Frazier,  93  Ala.  45.  9  South.  30.3; 
Highland  Ave.  &  B.  R.  Co.  v.  Winn,  93  Ala.  306,  9  South.  50J;  Ind'auar 
B.  &  W.  Ry.  Co.  V.  Burdge,  94  Ind.  46.  Where  both*  parties  act  will- 
fully, neither  party  would  probably  be  entitled  to  recover;  as,  for 
example,  where  the  drivers  of  two  vehicles  headed  towards  each 
other  intentionally  drive  into  each  other,  or  where  two  persons  vol- 
untarily engage  in  an  assault  and  battery  on  each  other. 

2  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Goben,  15  Ind.  App.  123,  42  N. 
E.  1116,  and  43  N.  E.  890. 

8  Sanford  v.  Railroad  Co.,  23  N.  Y.  343,  reversing  7  Bosw.  122. 

*  Chicago,  St.  L.  &  P.  R.  Co.  v.  Bills,  118  Ind.  221,  20  N.  E.  775. 

B  Thurman  v.  Railroad  Co.  (Ky.)  34  S.  W.  893. 

e  Chewuing  v.  Railway  Co.,  100  Ala.  493,  14  South.  204. 
(328) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    1  i" 


§  127.     DEFINITION. 

Contributory  neglig-ence  may  be  defined  to  be 
the  want  of  ordinary  care  on  the  part  of  the 
plaintiff,  which,  concurring  or  co-operating  with 
defendant's  negligence,  produced  the  injury 
complained  of  as  a  proximate  cause.  ^ 

The  two  essential  elements  of  contributory  negli- 
gence are  (1)  plaintiU's  want  of  ordinary  care;  and  [2} 
connection  between  that  and  the  injury  as  a  proximate 
cause.^ 

It  is  proposed  to  take  up  (1)  the  subject  of  want  of 
ordinary  care  on  the  part  of  a  normal  adult  passenger; 
(2)  variations  of  the  rule  in  favor  of  passengers  under 

§  127.  1  Contributory  negligence  consists,  in  contemplation  of  law,  in 
such  acts  or  omissions, on  the  part  of  the  plaintiff,  amounting  to  a  want 
of  ordinary  care,  as,  concurring  or  co-operating  with  the  negligent 
acts  of  defendant,  are  a  proximate  cause  or  occasion  of  the  injury 
complained  of.  Richmond  &  D.  R.  Co.  v.  Pickleseiuier,  So  Va.  798, 
10  S.  E.  44;  International  &  G.  N.  R.  Co.  v.  Garcia,  75  Tex.  5S3,  13 
S.  W.  223;    Beach,  Contrib.  Xeg.  §  3. 

2  In  Baltimore  &  P.  R.  Co.  v.  Jones,  95  U.  S.  439,  it  is  said:  "One 
who  by  his  negligence  has  brought  an  injury  upon  himself  cannot  re- 
cover damages  for  it.  Such  is  the  rule  of  the  civil  and  of  the  com- 
mon law.  A  plaintiff  in  such  case  is  entitled  to  no  relief.  But  where 
defendant  has  been  guilty  of  negligence  also  in  the  same  connection, 
the  I'esult  depends  upon  the  facts.  The  question  in  such  cases  is:  (1) 
Whether  the  damage  was  occasioned  entirely  by  the  negligente  or 
improper  conduct  of  the  defendant;  or  (2)  whether  the  plaintiff  him- 
Eelf  so  far  contributed  to  the  misfortune  by  his  own  negligence,  or 
want  of  ordinary  care  and  caution,  that  but  for  such  negligence  or 
v,-ant  of  care  and  caution  on  his  part  the  misfortune  would  not  have 
happened.  In  the  former  case,  the  plaintiff  is  entitled  to  recover; 
in  the  latter,  he  Is  not."  See,  also,  to  same  effect,  Richmond  &  D. 
R.  Co.  V.  MiiiTis,  31  Grat.  (Va.)  2(J0. 

(.32;)) 


§  128  CARRIERS  OP  PASSENGERS.  (Cll.  10 

disability;  (3)  the  subject  of  proximate  cause;  (4)  va- 
riations from  the  common  law  in  different  jurisdic- 
tions. 

§  128.  DEGREE  AND  STANDARD  OF  CARE. 

Unlike  the  carrier,  the  passenger  need  not  exercise 
the  hio-hest  degree  of  care  and  skill  for  his  own  safety. 
The  passenger  is  bound  to  exercise  only  ordinary  care 
and  prudence  to  preserve  himself  from  injury.'  "The 
principle  that  one  who  has  himself  used  reasonable 
care,  but  has,  notwithstanding,  suffered  an  injury  from 
the  negligence  of  another,  should  have  redress  for  that 
injury,  is  so  obviously  just  that  it  carrie.is  with  it  its 
own  vindication."  ^ 

The  standard  by  which  to  determine  whether  or  not 
a  normal  adult  passenger  has  failed  to  exercise  this 
degree  of  care  is  the  conduct  of  a  prudent,  reasonable 
man  in  possession  of  his  ordinary  senses  and  capaci- 
ties, placed  in  plaintiff's  situation.^  "It  is  certainly 
very  vague  and  uncertain  to  make  proper  care  vary 

§  128.  1  Mackoy  v.  Railway  Co.,  18  Fed.  236;  Smith  v.  Railway 
Co.,  32  Minn.  1,  18  N.  W.  827;  Keokuk  North.  Line  Packet  Co.  v.  True, 
88  111.  608;    Bland  v.  Railroad  Co.,  &r,  Cal.  626,  4  Pac.  072. 

2  Huelsenkamp  v.  Railway  Co.,  37  iMo.  537. 

3  Simms  v.  Railway  Co.,  27  S.  C.  268,  3  S.  E.  301.  Whether  or 
not  the  act  of  a  person  is  negligent  depends  on  whether  or  not  a  per- 
son of  "ordinary  prudence"  would  have  done,  or  omitted  to  do,  the 
same  thing.  Galloway  v.  Railway  Co.,  87  Iowa,  458,  54  N.  W.  447. 
The  test  of  the  liability  of  one  to  a  charge  of  contributory  negligence 
is  whether  a  prudent  person  in  the  same  situation,  and  having  the 
knowledge  possessed  by  the  one  in  question,  would  do  the  alleged 
negligent  act.  Texas  &  P.  Ry.  Co.  v.  Best,  66  Tex.  116,  18  S.  W. 
224.     See,  also,  Curtis  v.  Railroad  Co.,  27  Wis.  158. 

(330) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    129 

with  the  varying  capacities  and  infirmities  of  men. 
When  the  rights  and  obligations  of  one  party  are  made 
to  turn  upon  the  proper  caution  of  another,  it  would 
seem  that  there  should  be  some  common  standard  by 
which  to  test  the  fact,  and  we  know  of  none  practica- 
ble, other  than  that  of  a  prudent,  reasonable  man  in 
the  possession  of  the  ordinary  senses  and  capacities,"  * 
Where,  however,  the  passenger  belongs  to  a  class  un- 
der a  recognized  disability, — a  child,  for  example, — a 
different  rule  obtains.  ° 

In  conclusion,  it  should  be  stated  that  the  relative 
functions  of  court  and  jury  in  deciding  the  question  of 
contributory  negligence  are  the  same  as  their  functions 
on  the  subject  of  defendant's  negligence.' 

§  129.     DUTY  TO  USE  SENSES  AND  ASCERTAIN 

FACTS. 

A  man  may  be  negligent  in  ascertaining  his  sur- 
roundings, no  less  than  in  his  conduct  with  respect  to 
a  known  situation.  Of  course,  plaintiff's  previous 
knowledge,  or  want  of  knowledge,  of  his  surroundings 
is  a  material  circumstance  to  be  considered  by  the  jury 
in  determining  the  question  of  contributory  negli- 
gence, but  it  is  not  the  only  circumstance  to  be  consid- 
ered. Whether  or  not  he  had  any  past  experience  of 
the  dangers  of  the  situation,  he  is  bound  to  exercise  his 
senses.  He  must  use  his  eyes  and  ears,  and  exercise 
the  care  and  prudence  which  a  man  of  ordinary  care 

4  Renneker  v.  Railway  Co.,  20  S.  C.  219. 
0  See  iX)St,  §  183. 
«  See  ante,  §  28. 

(331) 


§129  CARRIERS   OF  PASSENGERS.  (Ch.    10 

and  prudence  would  be  expected  to  use  in  the  same 
circumstances  to  avoid  accident/  Such  care  and  pru- 
dence may  require  more  or  less  exercise  of  the  senses, 
as  the  situation  and  surroundinojs  vary.  In  some  in- 
stances a  person  of  ordinary  prudence  would  give  but 
little  heed  to  the  things  surrounding  him;  while  in 
others,  where  danger  is  quite  apparent,  he  would  exer- 
cise a  much  higher  degree  of  diligence  to  avoid  danger. 
The  extent  to  which  one's  faculties  must  be  exercised 
to  constitute  ordinary  care  depends  on  the  particular 
surroundings.''  Thus  a  passenger  at  a  station,  who  is 
perfectly  acquainted  with  the  location  of  the  tracks, 
is  guilty  of  contributory  negligence,  as  matter  of  law, 
in  "unconsciously"  or  "inadvertently"  stepping  on  the 
track,  right  in  front  of  a  slowly  moving  locomotive, 
which  could  have  been  seen  by  him  at  any  time  while 
within  200  feet  of  the  track.^  So,  where  a  passenger 
has  knowledge  of  the  presence  of  a  pile  of  lumber  on 
a  station  platform,  and  that  there  is  sufticient  room  to 
pass  between  the  lumber  and  the  edge  of  the  platform, 

§  129.  1  Illinois  Cent.  R.  Co.  v.  Davidson,  12  C.  C.  A.  118,  64  Fed. 
301.  A  passenger  who  unnecessarily  and  negligently  exposes  him- 
self to  danger  after  alighting  from  a  train,  by  walking  between  tracks. 
Is  guilty  of  contributory  negligence,  which  precludes  recovery  for 
Injuries  sustained  by  being  caught  between  trains  on  both  tracks, 
even  thougn  he  did  not  know  of  the  dangers  to  which  he  exposed  him- 
self while  so  walking.     Id. 

2  Prothero  v.  Railway  Co.,  134  Ind.  4:n,  33  N.  E.  7(35.  A  person 
who  enters  a  transfer  car  two  feet  above  the  surface  of  the  street, 
and  used  as  a  waiting  room  for  passengere  on  street  cars,  is  not  jus- 
tified in  closing  eyes  and  ears  to  the  natural  and  ordinary  use  of  the 
premises,  and  in  leaning  against  a  door  liable  to  be  opened  towards 
the  outside  at  any  moment,  thus  permitting  her  to  fall.     Id. 

8  Chewning  v.  Railway  Co.,  100  Ala.  493,  14  South.  204. 
(332) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    130 

his  mere  forgetfulness  of,  or  inattention  to,  this  fact, 
while  passing  along  the  platform  in  the  nighttime, 
on  his  way  to  the  train,  constitutes  contributory  negli- 
gence as  matter  of  law,  which  will  preclude  him  from 
recovering  for  injuries  sustained  in  stumbling  over  the 
lumber/  But  the  mere  fact  that  a  street  car  was  stop- 
ped during  a  trip,  and  that  a  trap  door  in  the  rear  plat- 
form was  raised,  is  not  notice  to  a  passenger  that  the 
trapdoor  was  defective,  so  as  to  charge  her  with  con- 
tributory negligence  in  passing  over  the  door  in  alight- 
ing from  the  car.^ 

When,  however,  a  person  has  been  duly  careful  to 
ascertain  his  surroundings,  his  conduct  must  be  tested 
by  the  facts  as  they  appear  to  him,  not  as  they  really 
are, — in  other  words,  he  is  not  bound  to  see.  He  is 
bound  to  make  all  reasonable  efforts  to  see  that  a  care- 
ful, prudent  man  would  make  in  like  circumstances. 
He  is  not  to  provide  against  any  certain  result.  He  is 
to  make  an  effort  for  a  result  that  will  give  safety, — 
such  an  effort  that  care,  caution,  and  prudence  would 
dictate.^ 

{^  130.     RELIANCE  ON  CARRIER. 

A  passenger  on  a  railroad  train  has  a  right  to  con- 
fidently rely  on  the  care  and  watchfulness  of  the  car- 
rier to  make  all  things  safe  for  his  transportation,  with 
its  necessary  incidents.      While  passively  submitting 

4  Wood  V.  Railroad  Co.,  100  Ala.  660,  13  South.  552.     This  decisiou 
Is  doubtful.     See  post,  §  132. 

6  Wa-shington  v.  Railway  Co.,  13  Wash.  9,  42  Pac.  628. 

e  Highland  Ave.  &  B.  R.  Co.  v.  Donovan,  IM  Ala.  299,  10  South,  lait; 
Greany  v.  Raik-oad  Co.,  101  N.  Y.  419,  5  N.  E.  425. 

(333) 


§  130  CARRIERS  OF  PASSENGERS.  (Ch.  10 

himself  to  his  care  during  the  journey,  or  while  enter- 
ing upon  or  leaving  its  cars  in  the  usual  place  and 
ordinary  time  and  manner,  he  is  not  to  be  deemed 
guilty  of  negligence,  unless  knowledge  of  a  defect  or 
peril  is  thrust  upon  him,  and  he  then  fails  to  use  ordi- 
nary care  to  avoid  injury/  Thus  a  passenger  walking 
along  a  station  platform  in  the  nighttime  has  a  right 
to  rely,  within  reasonable  limits,  on  the  presumption 
that  the  company  has  done  its  duty,  and  that  the 
platform  is  safe;  and  he  may  recover  for  injuries  sus- 
tained from  falling  into  a  hole  which  he  did  not  see." 
So,  where  a  bridge  has  become  dangerous  for  the  pas- 
sage of  cars,  and  the  company  requires  passengers  to 
change  cars,  and  walk  across  it,  a  passenger  is  not 
guilty  of  contributory  negligence,  as  matter  of  law,  in 
making  the  attempt  in  the  nighttime,  without  calling 
for  a  light,  since  she  had  a  right  to  presume  that  the 
carrier  would  do  its  duty  to  make  the  passage  safe.^ 
A  passenger  on  a  stagecoach,  with  knowledge  that  it 
is  not  provided  with  lights,  does  not  take  the  risk  of 
accidents  arising  from  the  failure  to  provide  lights.^ 

But  while  one  may,  in  the  exercise  of  reasonable 
care,  rely,  to  a  certain  extent,  upon  the  performance  of 
his  duty  by  the  other,  no  negligence  of  such  other  can 

§  130.     1  Ohio  &  M.  Ry.  Co.  v.  Stansberry,  132  Ind.  533,  32  N.  E. 
21S. 

2  Louisville,  N.  A.  &  C.  Ey.  Co.  v.  Lucas,  119  Ind.  583,  21  N.  E.  968. 

8  Jamison  v.  Railroad  Co.,  55  Cal.  593. 

4  Anderson  v.  Scholey,  114  Ind.  553,  17  N.  E.  125.  "Unless  the  in- 
strumentalities provided  by  the  carrier  are  so  glaringly  defective  as 
to  make  it  apparent  to  every  prudent  person  that  they  are  insufficient, 
and  that  the  journey  could  not  be  undertaken  with  safety,  the  pas- 
senger may  rely  on  the  care  and  foresight  of  the  carrier." 
(334) 


Ch.    10  ■  CONTRIBUTORY   NEGLIGENCE.  §    lol 

be  SO  dominant  as  to  relieve  him  from  his  own  obliga- 
tion;  and,  if  a  performance  of  such  obligation  might 
have  prevented  the  injury,  his  failure  so  to  perform 
must  be  considered  as  contributory  thereto."* 


§  131.     SAME— ON  CARRIER'S  SERVANTS. 

A  passenger  may  safely  rely  on  the  judgment  of 
those  placed  in  charge  of  the  train,  where  it  is  not 
plainly  open  to  his  observation  that  that  reliance  will 
expose  him  to  danger  that  a  prudent  man  would  not 
incur;  but  he  cannot  rely  on  their  judgment  where  it 
would  expose  him  to  a  risk  that  a  reasonably  prudent 
man  would  not  assume.^  Thus  where  an  empty  car 
is  apparently  coupled  to  a  train,  and  the  conductor 
cries  out,  "All  aboard!"  a  passenger  who,  in  the  dark, 

c  Hinckley  v.  Railroad  Co.,  120  Mass.  257. 

§  131.  1  Cincinnati,  H.  &  I.  R.  Co.  v.  Carper,  112  Ind.  26,  13  N. 
E.  122.  and  14  N.  E.  352.  "First.  Advice  or  direction  given  to  a 
passenger  by  conductors  or  others  In  the  management  of  vehicles  and 
railroad  trains,  even  though  plain  and  unambiguous,  cannot  be  held 
to  excuse  an  act  of  negligence  on  the  part  of  an  adult  passenger 
which  would  be  so  apparent  to  common  prudence  as  to  make  it  an 
obvious  act  of  recklessness  or  folly.  Second.  Where  the  net  advised 
to  be  done  is  one  where  the  danger  would  not  be  apparent  to  a  per- 
son of  reasonable  prudence,  and  the  passenger  acts  under  the  influ- 
ence of  such  advice,  given  by  the  conductor  or  manager  in  the  liui' 
of  his  ordinary  duties,  it  becomes  the  i  roviiice  of  the  jury  to  say  how 
far  the  plaintiff's  negligence  may  be  excused."  Soutli  &  N.  A.  R. 
Co.  v.  Schaufler.  75  Ala.  136.  See,  also,  Irish  v.  Railroad  Co.,  4 
Wash.  48,  20  Pac.  845,  and  cases  cited;  Davis  v.  Railway  Co.,  G9  Miss. 
13G,  10  South.  450;  Maher  v.  Railroad  Co.,  67  N.  Y.  52,  affiruiiug  ;;9 
N.  Y.  Super.  Ct.  155.  As  to  direction  to  b(jard  moving  train,  see  post. 
§  154.     As  to  direction  to  ride  in  dangerous  place  on  train,  see  post, 

§171. 

(335) 


§  131  CARRIERS  OP  PASSENGERS.  (Ch.  10 

proceeds  to  this  empty  ear  for  a  seat,  is  not  chargeable 
with  contributory  negligence  in  failing  to  notice  that 
the  coupling  had  not  been  effected,  and  that  the  cars 
were  several  feet  apart,  by  reason  of  which  she  fell 
into  the  opening.'  So,  where  the  conductor  notifies  a 
shipper  of  stock  that  his  cattle  are  down,  and  that  he 
had  better  look  after  them,  the  shipper  is  justified  in 
believing  that  there  is  no  danger  from  passing  trains 
while  so  doing;  and  his  failure  to  watch,  in  the  dark, 
for  an  approaching  train,  while  engaged  in  getting 
cattle  up,  does  not  bar  a  recovery  for  injuries  sustain- 
ed in  being  struck  by  such  a  train  while  at  work/ 

2  Lent  V.  Railroad  Co.,  120  N.  Y.  467,  24  N.  E.  653,  affirming  54  N. 
y.  Super.  Ct.  817.  See,  also,  to  same  effect.  Hannibal  &  St.  J.  R.  Co. 
V.  Martin,  111  111.  219;    Id.,  11  111.  App.  3SG. 

3  Fowler  v.  Railroad  Co.,  IS  W.  Va.  579.  See,  also,  Chicago  &  A. 
R.  Co.  V.  Rayburn,  52  111.  App.  277.  A  passenger  making  a  transfer 
from  one  street  car  to  another,  pursuant  to  the  directions  of  the  driver, 
has  a  right  to  assume  that  an  opportunity  will  be  given  him  to  make 
the  change  in  safety,  or  that  be  will  be  notihed  of  any  apparent  dan- 
ger foreseen  by  the  employes  who  are  at  the  point  of  danger,  and  he 
need  not  be  on  his  guard  against  being  run  into  by  another  car  while 
he  is  making  the  transfer  in  plain  view  of  the  driver.  Citizens'  St. 
R.  Co.  V.  Merl,  134  Ind.  609,  oS  N.  E.  1014.  If,  in  obedience  to  the 
direction  of  the  carrier's  servant,  a  passenger,  standing  in  a  safe 
place,  where  injury  would  not  have  occurred,  moves  to  another  part 
of  the  car,  unaware  of  the  fact  that  the  place  is  unsafe,  the  company 
Is  liable  for  an  injury  received  by  reason  of  assuming  such  position; 
and.  in  the  absence  of  apparent  danger,  the  passenger  has  the  right  to 
assume  that  the  place  to  which  she  is  directed  is  safe.  Prothero  v. 
Railway  Co.,  134  Ind.  431,  33  N.  E.  765.  A  passenger  is  not  guilty 
of  contributor}'  nogligence  in  obeying  the  conductor's  direction  as  to 
the  method  of  getting  on  the  car;  and  such  obedience  does  not  bar 
him  from  recovering  for  injuries  sustained  by  the  unexpected  starting 
of  the  engine.  Irish  v.  Railroad  Co.,  4  Wash.  48,  29  Pac.  845.  A 
passenger  by  mistake  on  a  wrong  train,  who  voluntarily  leaves  it 

(836) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    131 

Where  passengers,  expecting-  to  take  a  river  steamer, 
are  at  the  appointed  place  for  embarking,  with  no 
fences  or  gates  to  keep  them  back,  they  must  generally 
have  a  right,  if  they  do  so  in  good  faith,  to  assume  that 
no  dangerous  orders  will  be  given,  and  that  they  may 
safely  act  on  the  directions  of  officers  to  jump  a  dis- 
tance of  20  inches  from  the  dock  to  the  gangway  of  the 
steamer.  Some  allowance  must  also  be  made  for  such 
conditions  as  stand  in  the  way  of  full  deliberation.  It 
is  applying  too  harsh  a  rule  to  hold  that  persons  who 
have  apparently  but  a  few  moments  to  decide  between 
following  the  directions  of  the  officers,  and  losing  their 
last  chance  for  passage,  should  be  held  to  be  negligent 
in  doing  as  they  are  invited  to  do,  unless  the  danger  is 
very  obvious.* 

But  the  negative  side  of  the  rule — that  the  passenger 
cannot  rely  on  the  judgment  of  the  carrier's  servants 
when  it  is  obviously  dangerous  to  do  so — must  also  be 
borne  in  mind.  Thus  a  railroad  employ^,  carried  on 
a  construction  train  to  and  from  his  place  of  work,  is 
guilty  of  contributory  negligence,  as  matter  of  law,  in 
riding  on  the  pilot  of  the  locomotive,  when  there  is 
room  on  a  box  car,  and  he  cannot  recover  for  injuries 
sustained  in  a  collision,  even  if  he  occupied  his  perilous 
position  with  the  knowledge,  or  by  the  direction,  of 

Bome  distance  from  the  station,  is  not  guilty  of  contributory  negli- 
gence in  obeying  the  conductor's  direction  to  walk  back  to  the  sta- 
tion on  the  track;  and  a  recovery  may  be  had  for  his  death,  caused 
by  being  struck  by  another  train  on  a  trestle,  of  the  existence  of 
which  he  was  ignorant  when  he  undertook  to  walk  back.  Cincinnati, 
H.  &  I.  R.  Co.  V.  Carper,  112  Lnd.  2G,  13  N.  E.  122,  and  14  N.  E.  352. 
*  Clinton  v.  Root,  58  IMich.  182,  24  N.  W.  GUT. 

v.  1   FKT.CAR.PAS. — 22  (337) 


§  ]32  CARRIERS  OF  PASSENGERS.  (Ch.  10 

the  foreman.  As  well  might  he  have  obeyed  a  sugges- 
tion to  ride  on  the  cowcatcher,  or  put  himself  on  the 
track  in  front  of  the  advancing  wheels  of  the  locomo- 
tive/ 

g  132.     USE    OF    STATION    PLATFORM— KNOWLEDGE 

OF  DEFECTS. 

A  passenger  at  a  railroad  depot  waiting  for  his  train 
is  not  bound  to  remain  in  the  waiting  room  until  it  ar- 
rives, nor  is  he  guilty  of  negligence  in  going  on  the 
platform  before  it  becomes  necessary  to  board  the 
train,  so  as  to  preclude  recovery  for  an  injury  sus- 
tained by  being  run  into  by  a  baggage  truck.^  Nei- 
ther does  the  mere  knowledge  of  a  passenger  that  a 
station  platform  is  in  a  defective  condition  render  him 
guilty  of  negligence  in  using  the  platform;  nor  is  he 
bound  to  keep  the  knowledge  of  its  defective  condition 
constantly  in  mind,  since  the  presumption  is  that  the 
company  will  do  its  duty  and  repair  the  defect."  All 
that  can  be  required  of  him  is  that  he  should  exercise 
ordinary  care  and  prudence  in  using  the  platform.^ 
Neither  is  a  passenger  alighting  from  a  train  in  the 
daytime  guilty  of  contributory  negligence,  as  matter 
of  law,  in  failing  to  be  on  the  lookout  for  a  hole  in  the 
station  platform,  since  he  has  a  ri*ght  to  rely  on  the 
carrier's  care  and  watchfulness,  and  it  must  appear 
that  he  knew  of  the  defect,  and  failed  to  use  ordinary 

«  Baltimore  &  P.  R.  Co.  v.  Jones,  95  U.  S.  439, 
§  132.     1  Chicago  &  A.  R.  Co.  v.  Woolridge.  32  111.  App.  237. 
2  Pennsylvania  Co.  v.  Marion,  123  Ind.  415,  23  N.  E.  973. 
•  White  V.  Railway  Co.,  89  Ky.  478,  12  S.  W.  936. 
(338) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    132 

care  to  avoid  injury,  before  lie  can  be  said  to  be  guilty 
of  contributory  negligence  as  matter  of  law.*  So  the 
question  whether  a  passenger  is  guilty  of  negligence 
in  passing  over  a  sloping  part  of  a  station  platform  in 
going  to  a  train,  instead  of  going  down  steps, — there 
being  ice  and  stiow  on  the  platform, — is  one  for  the 
jury,  under  all  the  evidence.^ 

But  a  passenger  getting  off  at  a  station  in  the  night- 
time has  no  right  to  assume  that  the  station  is  entire- 
ly free  from  obstructions,  such  as  mail  bags  thrown 
from  the  train;   and  is  chargeable  with  contributory 

4  Ohio  &  M.  R.  Co.  V.  Stansberry,  132  Ind.  533,  32  N.  E.  218.  A 
train  was  stopped  in  sucli  a  position  tliat  tlie  forward  end  of  a  pas- 
senger car  was  opposite  a  baggage  triicli;,  37  feet  long  and  7  feet  wide, 
witli  its  top  on  a  level  with  the  car  platform.  A  number  of  pas- 
sengers got  off  at  the  forward  end  of  the  car,  all  stepping  on  the 
truck,  including  plaintiff.  Supposing  the  truck  to  be  the  regular 
station  platform,  she  walked  along  it,  as  others  before  her  were  doing, 
without  looking  to  see  where  she  was  walking,  and  after  taking  two 
or  three  steps  she  fell  off  the  truck.  Held,  that  it  could  not  be  said, 
as  matter  of  law,  that  she  was  negligent  in  getting  off  from  the 
front  platform  upon  the  truck,  instead  of  going  back  upon  the  rear 
platform,  nor  in  failing  to  carefully  scrutinize  the  floor  of  what  she 
supposed  was  the  station  jilatform  before  beginning  to  walk  forward 
on  it.     Bethmann  v.  Kailrcjad  Co.,  155  Mass.  352,  29  N,  E.  587. 

B  Rathgebe  v.  Railroad  Co.  (I'a.  Sup.)  3(>  Atl.  IGO.  A  passenger 
was  injured  by  falling  on  steps  leading  to  defendant's  railway  station, 
which  were  worn  and  hollowed,  and  covered  by  a  light  layer  of  snow, 
troflden  down  and  frozen  over.  Held,  that  the  mere  facts  that  the 
passenger  knew  the  stairway  was  dangerous,  that  he  could  have 
taken  another  stairway  which  was  safe,  and  that  he  went  down  cai-e- 
fully,  holding  the  hand  rail,  are  not  sufficient  to  show  that,  with  full 
knowledge  of  the  nature  and  extent  of  the  risk  he  ran,  he  impliedly 
agreed  to  incur  it,  and  that  therefore  the  maxim,  "Volenti  non  fit  in- 
juria," was  not  applicable.  Osborne  v.  Railway  Co.,  21  Q.  B.  Div. 
220. 

(339) 


.§  138  CARRIERS  OF  PASSENGERS.  (Ch.  10 

neiilii^ence  in  failing  to  observe  such  bags  before  stum- 
bling over  them,  where  there  is  sufdcient  light  to  en- 
able her  to  do  so.''  And  a  passenger  waiting  for  a 
train,  who  leaves  a  comfortable  w^aiting  room  and  Avell 
liglited  passenger  platform,  and  saunters  forth  into  the 
darkness  and  onto  the  freight  platform,  at  the  oppo- 
site side  of  the  station,  without  giving  any  heed  to 
timbers,  pieces  of  plank,  sewer  pipe,  shingles,  and  dirt 
which  impede  his  progress,  is  guilty  of  contributory 
negligence,  as  matter  of  law,  which  will  bar  a  recovery 
for  injuries  sustained  in  falling  into  a  pit  dug  by  the 
railroad  company  in  its  freight  platform/  A  passen- 
ger alighting  from  the  train  at  a  meal  station,  who  at- 
tempts, under  circumstances  fully  apprising  him  of 
the  risk,  to  reach  the  eating  house  by  passing  so  close 
to  the  baggage  car,  while  the  baggage  is  being  unload- 
ed, as  to  be  injured  by  a  trunk  falling  on  his  foot,  is 
guilty  of  negligence,  though  the  passage  he  chooses  to 
select  is  used  by  passengers;  there  being  another  path 
to  the  eating  house  as  convenient  and  direct,  free  from 
all  risk  or  obstruction,  provided  by  the  company  for 
passengers  to  reach  the  eating  house.* 

§  133.     USING  UNLIGHTED  PREMISES. 

A  passenger  is  not,  as  matter  of  law,  guilty  of  con- 
tributory negligence  in  walking  along  an  unlighted 
platform  in  the  nighttime,  to  see  whether  there  is  an- 
other coach  on  the  rear  end  of  the  train  he  is  about  to 

6  Sargent  v.  Railway  Co.,  114  Mo.  348,  21  S.  W.  823. 
1  Gundermau  v.  Itailway  Co.,  58  Mo.  App.  870. 
•  Duveriiet  v.  Steamship  Co.  ('La.)  21  South.  044, 
(340) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    13S 

board/  So,  tlioiigli  a  passenger  might  have  observed, 
when  arriving  at  a  station  in  daylight,  that  the  plat- 
form at  one  end  is  three  feet  above  the  ground,  the 
failure  to  bear  this  fact  in  mind  does  not  convict  her 
of  contributory  negligence,  as  matter  of  law,  which 
will  bar  a  recovery  for  injuries  sustained  in  falling 
from  the  platform  in  the  nighttime,  while  waiting  for 
a  delayed  train.'  The  question  whether  a  passenger 
is  guilty  of  contributory  negligence  at  a  station  with 
which  he  is  well  acquainted,  in  walking  across  the 
platform  obliquely  in  the  nighttime,  and  thus  missing 
the  steps,  instead  of  going  straight  ahead,  is  for  the 
jury.' 

But  the  unexplained  failure  of  a  passenger,  on  leav- 
ing a  station  in  the  nighttime,  to  use  lighted  stairs, 
and  passing  into  utter  darkness  in  search  of  another 
pair  of  stairs,  is  prima  facie  evidence  of  negligence  on 

§  133.    1  Buenemann  v.  Railway  Co.,  32  Minn.  390,  20  N.  W.  379. 

2  Missouri  Pac.  Ry.  Co.  v.  Neiswauger,  41  Kan.  621,  21  Pac.  582. 
It  is  for  the  jury  to  determine  -whether  a  person  accompanying  an  in- 
tending passenger  to  the  station,  who  goes  on  the  platform  at  a  place 
where  it  is  nearly  level  with  the  ground,  is  guilty  of  contributory 
negligence  in  attempting  to  step  from  it  in  the  dark  at  a  place  four 
feet  above  the  ground,  where  she  testifies  that  she  looked,  and  thoughi 
the  ground  near  enough  to  be  reached  by  a  step.  Missouri,  K.  &  T. 
Ry.  Co.  V.  Turley  (Indian  Ter.)  37  S.  W.  52. 

3  Alabama  G.  S.  R.  Co.  v.  Arnold.  84  Ala.  159,  4  South.  359.  A. 
passenger  descending  a  dark  stairway  at  an  elevated  station,  who 
has  carefully  felt  her  way  until  she  thought  she  was  at  the  bottom. 
Is  not  chargeable  with  negligence,  as  matter  of  law,  in  stepping  out  as 
though  the  bottom  had  been  reached;  but  it  is  a  question  for  the  jury 
whether  she  should  have  continued  to  feel  her  way  until  she  touched 
the  ground.     Flagg  v.  Railway  Co.,  49  N.  Y.  Super.  Ct.  251. 

(341) 


§  133  CARRIERS  OF  PASSENGERS.  (Ch.  10 

his  part.*  So  a  passenger  at  a  station,  who  knows 
that  his  train  is  approaching,  and  who  walks  away 
from  the  light  to  the  point  where  he  thinks  the  bag- 
gage car  will  stop,  and  who  in  so  doing  steps  off  the 
edge  of  the  platform  in  the  dark,  and  is  struck  by  the 
engine,  is  guilty  of  contributory  negligence  as  matter 
of  law/  So  a  passenger  alighting  on  a  crowded  sta- 
tion platform  in  the  nighttime  is  guilty  of  contributory 
negligence  in  pressing  through  the  crowd,  and  walk- 
ing off  the  edge  of  the  platform,  after  being  warned  of 
the  danger  by  a  railroad  official.®  A  passenger  who, 
on  a  dark  night,  instead  of  walking  along  the  platform 
to  a  highway,  voluntarily  steps  off  the  side  of  the  plat- 

4  Bennett  v.  Railroad  Co.,  57  Conn.  422,  18  Atl.  668.  A  passenger 
who,  on  alighting  from  a  train  in  the  nighttime,  inquires  of  a  mere 
stranger  for  a  privy,  instead  of  some  railroad  employe,  and  who  goes 
In  the  direction  indicated,  beyond  the  depot  platform,  and  falls  over 
a  steep  bluff,  is  guilty  of  contributory  negligence,  and  cannot  raise 
the  question  whether  it  is  the  duty  of  the  company,  Independent  of 
statute,  to  keep  such  accommodation  lighted  and  visible,  so  that  a 
passenger  can,  without  danger,  find  it.  Montgomery  &  E.  Ry.  Co. 
V.  Thompson,  77  Ala.  448. 

B  Bradley  v.  Railway  Co.  (Mich.)  65  N.  W.  102. 

«  Missouri  Pac.  R,  Co.  v.  Texas  &  P.  Ry.  Co.,  33  Fed.  359.  A  fe- 
male passenger,  leaving  a  train  late  at  night,  was  shown  by  the  light 
of  a  lamp  up  the  steps  of  the  platform  into  the  reception  room  of  the 
depot.  She  declined  going  to  an  hotel,  and  announced  her  intention 
to  wait  at  the  depot  for  another  train,  to  arrive  early  next  morning. 
While  the  platform  lamp  was  being  trimmed  in  her  presence,  she 
hurriedly  walked  out  upon  the  platform,  and,  without  taking  the  pre- 
caution to  inquire  or  ascertain  whether  or  not  she  could  safely  do  so, 
turned  at  right  angles  from  the  lighted  reception  room,  and  walked 
in  the  dark  to  the  end  of  the  platform,  where  she  fell  off,  and  was 
injured.  Held,  that  she  was  guilty  of  contributory  negligence.  Reed 
V.  Axtell,  84  Va.  231,  4  S.  E.  587. 
(342) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §13-1 

form  next  the  track,  with  the  intention  of  going  ob- 
liquely to  the  highway,  and  without  doing  anything  to 
ascertain  what  would  be  found  on  stepping  off  the 
platform,  is  guilty  of  contributory  negligence,  and  can- 
not recover  for  injuries  sustained  in  stepping  into  a 
cattle  guard/ 

§  134,     STANDING    NEAR    EDGE    OF  STATION  PLAT- 
FORM. 

A  passenger  on  a  platform  erected  by  the  company 
for  the  accommodation  of  passengers  is  not  charge- 
able, as  matter  of  law,  with  knowledge  that  passing 
trains  may  project  a  few  inches  over  tJie  edge  of  the 
platform;  and  the  question  w^hether  he  is  guilty  of 
contributory  negligence  in  standing  near  the  edge, 
where  he  was  struck  by  a  train,  is  one  of  fact  for  the 
jury.^  So  a  passenger  is  not,  as  matter  of  law,  guilty 
of  contributory  negligence  in  walking  along  the  edge 
of  the  platform,  near  a  railroad  track,  in  the  direction 
of  his  train,  without  looking  to  see  whether  a  train  is 
approaching  him  from  behind,  since  he  has  a  right  to 
rely  to  some  extent  upon  the  giving  of  proper  and 
usual  signals  of  danger,  or  other  suitable  warning,  in 
case  of  the  approach  of  a  train;   and  he  may  recover 

7  Forsyth  v.  Kailroad  Co.,  lo:]  Mass.  510. 

§  184.  1  Doblecki  v.  Sharp,  88  N.  Y.  203.  A  passenger  has  a  right 
to  regard  the  platform  as  a  safe  and  prober  idace;  aud,  where  he  is 
ignorant  of  the  existence  even  of  a  traclc  near  the  edge  of  tlie  plat- 
form, he  is  not  chargeable  with  negligence  in  standing  so  near  the 
edge  as  to  be  struck  by  an  incoming  train,  rnniiing  at  a  high  rate  of 
speed,  which  swept  a  portion  of  the  platform.  Archer  v.  Kailroad 
Co.,  100  N.  Y.  GS;J,  13  N.  E.  818. 

(343) 


§  134  CARRIERS  OF  PASSENGERS.  (Ch.  10 

for  injuries  sustained  by  being  struck  by  a  projecting 
step  on  a  train,  which  gave  no  signal  of  its  approach.^ 
But  in  Pennsylvania  it  has  been  held  that  a  person  at 
a  railroad  station  at  night,  who  is  warned  of  the  ap- 
proach of  his  train,  who  leaves  the  station  to  take  it, 
and  who  could  have  heard  it  and  seen  its  headlight  for 
a  long  distance,  is  guilty  of  contributory  negligence,  as 
matter  of  law,  in  walking  so  near  the  edge  of  the  plat- 
form as  to  be  struck  by  the  locomotive.^  And  a  pas- 
senger, waiting  for  his  train,  who  stands  so  near  the 
edge  of  a  freight  platform  as  to  be  struck  by  an  engine, 
is  guilty  of  contributory  negligence,  as  matter  of  law, 
where  he  would  have  been  perfectly  safe  had  he  re- 
mained on  the  platform  intended  for  passengers.* 

2  Sonier  v.  Railroad,  141  Mass.  10,  6  N.  E.  84.  One  who  is  right- 
fully on  the  platform  at  a  station  is  not  guilty  of  contributory  negli- 
gence in  failing  to  look  out  for  an  approaching  locomotive,  the  bump- 
ers of  which  projected  18  inches  over  the  edge  of  the  platform,  and 
struck  the  plaintiff.  Langan  v.  Railway  Co.,  72  Mo.  392.  A  person 
laAvfully  on  a  platform  at  a  station,  who  hears  a  train  approaching, 
and  who  then  moves  to  the  middle  of  the  platform,  where  he  would  be 
safe  from  trains  of  ordinary  width,  is  not  guilty  of  contributory  neg- 
ligence in  failing  to  notice  that  the  train  is  one  of  a  peculiar  build, 
having  brake  wheels  projecting  14  inches  from  the  car;  and  he  may 
recover  for  injuries  sustained  by  being  struck  by  one  of  them.  Sul- 
livan V.  Railroad  Co.,  39  La.  Ann.  800,  2  South.  586.  A  passenger 
waiting  for  a  car  in  a  depot,  at  the  terminus  of  a  street-railroad  line, 
is  not  bound  to  anticipate  the  shifting  of  the  car  from  one  track  to 
another  by  a  side  movement,  and  is  not  chargeable  with  negligence 
In  standing  so  near  the  movable  platform  as  to  be  injured  by  the 
shifting,  in  the  absence  of  all  warning  by  the  employes,  or  of  any 
knowledge  of  the  structure  for  shifting  the  cars.  Gordon  v.  Railroad 
Co.,  40  Barb.  (N.  Y.)  546. 

8  Pennsylvania  R.  Co.  v.  Bell.  122  Pa.  St.  58.  15  Atl.  561. 

4  Matthews  v.  Railroad  Co.,  148  Pa.  St.  491,  24  Atl.  67.  Where  a 
(344) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    135 


§  135.     STANDING  BETWEEN  CAR  TRACKS. 

It  is  contributory  negligence,  as  matter  of  law,  for  a 
person  to  stand  between  two  street-car  tracks,  and  to 
board  a  street  car  in  that  situation,  when  he  sees  an- 
other car  approaching  on  the  other  track,  which  strikes 
him  just  as  he  is  about  to  get  on  board.'  So  it  is  neg- 
ligence, as  matter  of  law,  for  a  person  intending  to 
take  a  cable  car  to  deliberately  stand,  after  dark,  be- 
tween double  tracks,  so  near  together  that  cars  going 
in  opposite  directions  pass  within  two  feet  of  each 
other,  and  in  that  situation  wait  for,  and  attempt  to 
take  passage  on,  cars  coming  on  one  track,  without 
paying  any  attention  as  to  whether  cars  are  approach 
ing  within  dangerous  proximity  on  the  other  track. - 

railroad  company  has  provided  a  safe  platform  for  passengers  at  its 
station,  a  passenger  who  stands  on  the  baggage  platform,  on  the  op- 
posite side  of  the  track,  which  is  so  nai-row  as  not  to  admit  of  his 
standing  between  it  and  an  approaching  train,  is  guilty  of  contribu- 
tory negligence  which  bars  an  action  for  his  death.  Little  Rock  & 
Ft.  S.  Ry.  Co.  V.  Cavanesse,  48  Ark,  lOG,  2.S.  W.  lOo. 

§  135.  1  Davenport  v.  Railroad  Co.,  100  N.  Y.  632,  3  N.  E.  305; 
Halpin  v.  Railroad  Co.,  40  N.  Y.  Super.  Ct.  175.  But  in  an  earlier 
case  it  was  held  that  it  is  not  necessarily  negligence  for  a  person  to 
endeavor  to  board  a  street  car  on  the  side  next  to  a  parallel  track, 
BO  as  to  bar  a  recovery  for  injuries  sustained  by  reason  of  the  start- 
ing of  the  car,  dragging  him  along  until  he  is  struck  by  a  car  on 
the  adjoining  track.  Dale  v.  Railroad  Co.,  1  Hun,  14G,  affirmed  in 
eO  N.  Y.  G38. 

2  Miller  v.  Railway  Co.,  42  Minn.  454,  44  N.  W.  533.  One  who 
mounts  a  street  car  between  parallel  tracks,  without  looking  to  see 
whether  another  car  is  coming,  cannot  recover  for  injuries  sustained 
in  being  struck  by  the  other  car.  Schreiner  v.  Railroad  Co.,  5  Mo. 
A  pp.  59G. 


§  135  CARRIERS  OF  PASSENGERS.  (Ch.  10 

A  passenger,  standing  between  two  street-car  tracks, 
is  guilty  of  contributory  negligence  in  stepping  back 
on  one  of  the  tracks  as  her  car  is  approaching,  without 
looking  to  see  whether  another  car  is  approaching  on 
the  track  on  which  she  has  stepped.^ 

The  same  rule  has  been  applied  to  passengers  stand- 
ing between  tracks  at  stations.  A  passenger  at  a  rail- 
road station,  who,  in  anticipation  of  the  approach  of 
his  train,  stands  on  the  planking  between  two  tracks, 
and  is  injured  in  consequence  of  a  coal  train  backing 
up  on  one  track,  while  his  train  is  arriving  on  the  other 
track,  is  guilty  of  contributory  negligence  as  matter  of 
law;  there  being  a  safe  place  beyond  the  tracks,  pro- 
vided by  the  company,  at  which  he  could  have  remain- 
ed until  the  actual  arrival  of  his  train."  But  in  New- 
York  it  has  been  held  that  one  intending  to  board  a 
train  is  not  guilty  of  contributory  negligence,  as  mat- 
ter of  law,  in  standing  on  a  sidewalk  between  two  par- 
allel tracks  in  front  of  the  depot,  so  as  to  bar  a  recov- 
ery for  injuries  sustained  in  being  caught  on  the  walk 
between  two  trains  on  the  parallel  tracks.'' 

8  Bailey  v.  Railway  Co.,  110  Cal.  320,  42  Pac.  914. 

4  McGeehan  v.  Railroad  Co.,  149  Pa.  St.  188,  24  Atl.  205.  Ordi- 
nary prudence  requires  that  one  standing  on  a  station  platform  be- 
tween two  tracks,  .sufticiently  wide  to  give  liim  abundant  room  for 
safety,  should  give  rea^^onable  attention  to  his  surroundings.  He  can- 
not recover  where  he  becomes  so  abstracted  in  thought  as  to  be  ob- 
livious to  his  surroimdings,  and  where  he  stands  so  near  the  edge  as 
to  be  struck  by  an  approaching  engine.  Chicago,  B.  &,  Q.  R.  Co.  v. 
Mahara,  47  111.  App.  208. 

5  O'Toole  V.  Railroad  Co.,  58  Hun,  G09,  12  N.  Y.  Supp.  347,  affirmed 
128  N.  Y.  597,  28  N.  E.  251. 

(346) 


•Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    136 

§  136.     CROSSING    RAILROAD    TRACK    AT    STATION. 

The  rule  requiring  a  person  to  stop,  loolv,  and  listen 
before  crossing  a  railroad  track  does  not  apply  to  the 
case  of  a  passenger  who  is  compelled  to  cross  an  in- 
tervening track  at  a  station  in  order  to  reach  his  train. 
In  such  a  case,  the  rule,  as  established  by  the  weight  of 
authority,  is  that  the  passenger  is  justified  in  assuming 
that  the  company  has,  in  the  exercise  of  due  care,  so 
regulated  its  trains  that  the  road  will  be  free  from  in- 
terruption or  obstruction  when  passenger  trains  stop 
at  a  station  or  depot  to  receive  and  deliver  passengers. 
Upon  any  other  principle,  the  lives  of  passengers  might 
be  most  dangerously  exposed,  in  the  hurry,  noise,  and 
confusion  that  generally  attend  the  arrival  and  depar- 
ture of  passenger  trains  at  stations.  Hence  the  rule 
which  quite  generally  prevails  is  that  the  court  can- 
not declare  a  passenger  guilty  of  negligence,  as  mat- 
ter of  law,  in  failing  to  look  and  listen  for  an  approach- 
ing train  before  crossing  an  intervening  track  on  his 
way  between  the  station  and  the  train;  but  that  the 
question  is  one  of  fact  for  the  jury.^     Thus,  where  the 

§  136.  1  Baltimore  &  O.  R.  Co.  v.  State,  GO  Md.  449;  Atchisou,  T. 
&  S.  F.  R.  Co.  V.  Shean,  18  Colo.  368,  33  Pac.  108;  Denver  &  R.  G. 
R.  Co.  V.  Hodgson,  38  Colo.  117,  31  Pac.  954;  Baltimore  &  O.  R.  Co. 
V.  State,  81  Md.  ::71,  32  A-tl.  201;  Malmsten  v.  Railroad  Co.,  49  Mich. 
94,  13  N.  W.  373;  Chicago  &  E.  I.  R.  Co.  v.  Chancellor,  60  111.  App. 
525;  Terry  v.  Jewett,  78  N.  Y.  3:J8,  attirmiug  17  Hua,  395;  Bra&sell 
V.  Railroad  Co.,  84  N.  Y.  241;  Parsons  v.  Railroad  Co.,  113  N.  Y. 
355,  21  N.  E.  145;  S.  O.  37  Hun,  128;  Hlrsch  v.  Railroad  Co.,  53 
Huu,  033,  6  N.  Y.  .Supp.  162;  Pinoo  v.  Railroad  Co.,  34  Hun,  80;  Van 
Ostran  v.  Railroad  Co.,  35  Hun,  590;  Gonzales  v.  Railroad  Co.,  39 
How.  Prac.  (N.  Y.)  407,  reversing  1  Sweeney  (N.  Y.)  506;    Green  v. 

CUT) 


§  136  CARRIERS  OF  PASSENGERS.  (Ch.  10 

name  of  a  station  is  called  in  the  nighttime,  and  the 
train  is  brought  to  a  standstill  on  a  side  track  near  the 
station,  a  passenger,  having  no  notice  of  danger,  is  jus- 
tified in  accepting  the  company's  implied  invitation  to 
alight;  and  his  failure  to  look  and  listen  before  at- 
tempting to  cross  the  main  track  on  his  way  to  the  sta- 
tion is  not  contributory  negligence,  as  matter  of  law, 
which  will  bar  a  recovery  for  injuries  sustained  by  be- 

Railway  Co..  11  Hun,  333;  Armstrong  v.  Railroad  Co.,  66  Barb.  (N. 
T.)  437,  affirmed  in  G4  N.  Y.  635:  Jewett  v.  Klein,  27  N.  J.  Eq.  550; 
Boss  V.  Railroad  Co..  15  R.  I.  14'J,  1  Atl.  9;  Robostelli  v.  Railroad  Co., 
33  Fed.  796.  One  who,  while  cros.sing  a  railroad  track  from  a  depot 
to  go  to  his  train  on  the  next  track,  is  struck  by  a  train  running  2') 
miles  an  hour,  which  he  did  not  see,  and  which,  owing  to  a  curve  in 
the  track,  could  have  been  seen  only  when  within  a  short  distance  of 
the  depot,  is  not  necessarily  guilty  of  contributory  negligence.  Chi- 
cago, St.  P.  &  K.  C.  R.  Co.  V.  Ryan  (111.)  46  N.  E.  208,  reversing  62  111. 
App.  264.  The  rule  requiring  a  person,  before  crossing  a  railroad  at  a 
highway,  to  stop,  and  look  and  listen  for  approaching  trains,  does 
not  apply  to  persona  who  are  crossing  the  track  on  a  Avalk  at  a  sta- 
tion, for  the  purpose  of  boarding  a  train.  Warfield  v.  Railroad  Co.^ 
8  App.  Div.  479,  40  N.  Y.  Supp.  783.  A  similar  rule  prevails  in  Eng- 
land. A  person  accompanying  a  passenger  to  a  station  was  killed  at 
the  station  by  a  collision  with  a  train,  while  walking  across  the  track. 
The  accident  happened  in  the  nighttime,  and,  standing  on  the  plat- 
form from  which  he  started,  deceased's  view  of  the  approaching  train 
was  cut  off  by  another  train  on  an  intervening  track,  but  after  he 
had  passed  this  intervening  track  there  was  a  distance  of  six  feet 
to  the  other  track,  and  he  could  have  seen  the  approaching  train  at 
any  point  of  this  six  feet  had  he  looked.  The  approaching  train,  how- 
ever, failed  to  sound  any  whistle,  as  it  was  required  to  do  by  de- 
fendant's rules.  Held,  that  it  was  for  the  jury  to  determine  whether 
or  not  plaintiff's  failure  to  look  for  approaching  trains  while  on  the 
six-foot  way,  or  the  negligence  of  the  company  in  failing  to  sound 
the  whistle,  was  the  proximate  cause  of  the  accident,  and  that  a  ver- 
dict could  not  be  directed  for  defendant  on  the  ground  of  contributory 
negligence.  Dublin,  W.  &  W.  Ry.  Co.  v.  Slattery,  3  App.  Gas.  1155. 
(3-18) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    136 

ing  struck  by  an  approaching  train,  but  the  question  is 
one  of  fact  for  the  jury.^  So  where  a  passenger  is  car- 
ried beyond  the  station,  and  into  the  switching  yard, 
and  is  struck  by  an  engine  while  attempting  to  cross  a 
track  on  her  way  out  of  the  yard,  it  is  for  the  jury  to 
determine  whether  she,  with  such  knowledge  as  she 
possessed  of  the  peril  of  the  place,  and  witJi  the  pre- 
sumption she  "VN^as  entitled  to  indulge  as  to  the  degree 
of  care  which  defendant's  employes  would  exercise  for 
her  protection,  was  herself  guilty  of  negligence  which 
proximately  contributed  to  her  injury.^     It  has  been 

2  St.  Louis  S.  W.  Ry.  Co.  v.  Johnson,  59  Ark.  122,  26  S.  W.  593. 
A  passenger  whose  hat  has  blown  off  is  not  guilty  of  negligence,  as 
mattei-  of  law,  in  stepping  on  a  railroad  track  to  pick  it  up,  so  as  to 
bar  a  recovery  for  injuries  sustained  by  being  struck  by  a  locomo- 
tive. Bernhard  v.  Railroad  Co.,  1  Abb.  Dec.  (N.  Y.)  131,  affirming 
32  Barb.  (N.  Y.)  1G5.  It  is  a  question  of  fact  for  the  jury  whether  a 
passenger  on  his  way  to  take  a  train,  who  steps  back  on  a  track 
to  avoid  an  approaching  train  on  another,  is  guilty  of  negligence  in 
failing  to  observe  a  detached  freight  car  moving  slowly  along  the 
track  on  which  he  has  stepped.  Hempenstall  v.  Railroad  Co.,  82 
Hun,  285,  31  N.  Y.  Supp.  479.  The  same  rule  applies,  to  a  mall  and 
express  man,  while  on  his  way  to  the  train  to  get  the  mail.  Tubbs  v. 
Railroad  Co.  (...ich.)  64  N.  W.  1061. 

3  Franklin  v.  Motor  Road  Co.,  85  Cal.  63,  24  Pac.  723.  Where  a 
railroad  company  constructs  a  platform  for  the  use  of  passengers  be- 
tween two  parallel  tracks,  a  passenger  who  is  walking  along  it  on  his 
way  to  the  train,  and  whose  progress  is  Impeded  by  a  crowd  of  other 
passengers,  is  not  guilty  of  negligence,  as  matter  of  law,  in  stepping 
on  one  of  the  tracks,  to  pass  around  the  crowd,  without  looking  for 
a  rapidly  approaching  train,  which  strikes  him  as  he  steps  on  the 
track.  Union  Pac.  Ry.  Co.  v.  Sue,  25  Neb.  772,  41  N.  W.  801.  A 
passenger,  leaving  the  station,  passed  along  the  platform,  until  he 
renfhed  a  stairway.  On  arriving  at  the  bottom  of  the  stairs,  his 
further  progress  was  obstructed  by  a  pile  of  shells  placed  there  by 
the  company,  and  he  was  compelled  to  step  aside,  on  the  ends  of 

(349) 


§  136  CARRIERS  OF  PASSENGERS.  (Ch.  10^ 

held  by  the  supreme  court  of  the  United  States  that  a 
passenger  who  is  compelled  to  cross  an  intervening 
track  in  alighting  from  a  train,  in  order  to  reach  the 
station,  is  not  guilty  of  contributory  negligence,  as 
matter  of  law,  in  failing  to  be  on  the  lookout  for  an  ap- 
proaching train,  where  the  ties  have  been  covered  up- 
with  earth,  and  it  does  not  appear  that  he  knew  that  he 
was  on  a  railroad  track.*  The  supreme  judicial  court  of 
Massachusetts  has  held  that  where  it  is  necessary  for 
a  passenger  to  cross  an  intervening  track  in  going  from 
the  station  to  his  train,  and  he  is  asked  by  the  station 
agent  to  cross  over,  it  cannot  be  said,  as  matter  of  law, 
that  he  is  guilty  of  contributory  negligence  in  walking 
across  the  track,  so  as  to  preclude  recovery  for  inju- 
ries sustained  by  being  struck  by  an  engine;  but  it  is- 
a  question  of  fact,  to  be  determined  by  the  jury  in  view 
of  all  the  circumstances. °  So  where  a  passenger 
alights  at  the  station,  on  a  narrow  platform,  between 
two  tracks,  and  is  struck  by  an  engine  while  attempt- 
ing to  cross  one  of  them,  the  question  whether  she  ex- 
ercised due  care  is  for  the  jury,  on  her  testimony  that 
she  looked  up  and  down  the  track  before  stepping  on 
it,  and  that  she  was  unable  to  see  any  indication  of  an 

the  cross  ties,  on  a  side  track.  After  taliing  a  few  steps,  he  was 
struck  by  an  engine  and  injured.  Steam  was  escaping  from  the  en- 
gine on  the  main  track,  so  that  he  did  not  hear  the  approaching  train,, 
and  he  did  not  know  that  it  was  due.  Held,  that  his  failure  to  look 
for  the  approaching  train,  when  stepping  on  the  side  track,  was  not 
negligence,  as  matter  of  law.  Sanchez  v.  Railway  Co.,  3  Tex.  Civ.. 
App.  89,  22  S.  W.  242. 

*  Richmond  &  D.  R.  Co.  v.  Powers,  149  U.  S.  43,  13  Sup.  Ct.  748. 

e  Warren  v.  Railroad  Co.,  8  Allen  (Mass.)  227. 
(350) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    136 

approaching  train. ^  And  a  passenger  going  from  the 
station  house,  in  the  direct  and  usual  course,  to  enter 
cars  which  are  waiting  to  receive  passengers,  who  is 
obliged,  by  the  location  of  the  tracks,  to  pass  over  an 
unoccupied  track,  has  a  right  to  rely,  to  some  extent, 
upon  proper  and  usual  signals  of  warning  being  given 
by  trains  or  cars  passing  the  unoccupied  track  at  such 
a  phice,  and  under  such  circumstances.^  In  Pennsjd- 
vauia  it  has  been  held  that,  where  the  onlv  Avav  bv 
which  a  passenger  can  reach  his  train  is  across  an  in- 
tervening track  at  a  station,  no  presumption  of  neg- 
ligence arises  against  him  because  he  took  that  way; 
nor  is  it  necessarily  negligence  for  him  to  start  across 
before  the  train  which  he  intends  to  take  has  come  to 
a  full  stop.* 

But  in  neither  Massachusetts  nor  Pennsj'lvania  is 

6  Gaynor  v.  Railroad  Co.,  100  Mass.  208. 

7  Chaffee  y.  Railroad  Corp.,  104  Mass.  108.  "It  cannot  be  main- 
tained, as  matter  of  law,  that  the  plaintiff  was  negligent  in  not  look- 
ing up  and  down  the  track  at  the  moment  when,  in  a  dark  night,  he 
stepped  from  the  platform  upon  it.  He  had  assured  himself,  shortly 
before,  by  looking  each  way,  that  there  was  no  car  approaching  which 
•would  make  the  crossing  hazardous.  His  attention,  with  due  care  to 
his  own  safety,  may  haYe  been  properly  turned  for  the  instant,  to 
see  if  there  was  any  obstruction  before  him  on  the  track,  or  oxcaYa- 
tion  in  his  way,  or  danger  of  collision  with  other  passengers  passing 
to  or  from  the  cars." 

8  Kohler  y.  Railroad  Co.,  135  Ta.  St.  34G.  19  Atl.  1049.  In  an  ac- 
tion for  the  death  of  a  pas^senger,  killed  while  crossing  a  track  on  his 
way  from  the  station  grounds  by  a  frequented  path,  generally  used 
by  pas.sengers,  the  evidence  was  conflicting  as  to  the  exact  position 
of  the  engine  when  she  started  to  cross,  and  as  to  whether  it  was 
Btill  on  the  track  when  she  started.  Held,  that  the  question  of  her 
contributory  negligence  was  for  the  jury.  Delaware,  L.  &  W.  R.  Co. 
V.  Jones,  128  Pa.  St.  308,  18  Atl.  330. 

(351) 


§  13G  CARRIERS  OF  PASSENGERS.  (Ch.  10 

the  rule  as  broad  as  that  which  obtains  in  most  of  the 
states.  In  Massachusetts  it  is  held  that  a  passenger 
alighting  from  a  train  at  a  station  has  no  right  to 
assume  that  trains  will  not  cross  each  other  at  a  sta- 
tion, and  to  shut  his  eyes  and  walk  ahead  on  that  as- 
sumption; and  he  cannot  recover  for  injuries  sustain- 
ed by  being  struck  by  an  engine,  while  walking  across 
a  track  at  the  station,  where  it  appears  that  he  must 
have  seen  the  engine  had  he  looked  before  going  on 
the  track.®  In  Pennsylvania  it  is  held  that  a  passenger 
who,  under  the  mistaken  belief  that  his  own  train  is 
about  to  start,  runs  across  an  intervening  track  in 
front  of  an  approaching  train  in  plain  view,  without 
stopping  to  look  and  listen,  is  guilty  of  contributory 
negligence  as  matter  of  law.^"  A  similar  ruling  has 
been  made  in  Canada.^^ 

8  Connolly  v.  Railroad  Co.,  158  Mass.  8,  32  N.  E.  937.  A  passenger 
at  a  railroad  station  is  guilty  of  negligence  in  attempting  to  cross  a 
track,  in  broad  daylight,  in  front  of  an  approaching  engine,  at  a  point 
not  acquiesced  in  by  the  railroad  as  a  crossing  place,  and  without 
any  invitation  on  the  part  of  its  employes.  Young  v.  Railroad  Co., 
156  Mass.  ITS,  30  N.  E.  5G0.  A  person  at  a  railway  station,  intend- 
ing to  take  a  train,  was  struck  by  a  locomotive,  while  crossing  a 
track  at  a  place  not  designed  or  adapted  for  a  crossing,  though  used 
by  persons  as  such  for  nearly  20  years.  The  accident  happened  in 
broad  daylight,  and  the  track  was  straight  for  a  quarter  of  a  mile, 
with  nothing  to  obstruct  plaiutitf's  view.  Held,  that  plaintiff  was 
guilty  of  contributory  negligence  in  failing  to  look,  though  a  ti-ain 
had  just  passed  on  that  track,  and  though  she  knew  of  one  of  de- 
fendant's rules  which  prohibited  trains  from  passing  each  other  at 
stations,  or  from  following  each  other  within  five  minutes.  Wheel- 
wright V.  Railroad  Co.,  135  Ma^s.  225. 

10  irey  v.  Railroad  Co.,  132  Pa.  St.  563,  19  Atl.  341;    Foreman  v. 
Railroad,  159  Pa.  St.  541,  28  Atl.  358,  affirming  11  Pa.  Co.  Ct.  475. 


11  See  note  11  on  following  page. 
(352) 


Ch.  10)  CONTRIBUTORY  NEGLIGENCE  §  136 

In  all  cases,  however,  the  implied  invitation  and  as- 
surance that  a  passenger  compelled  to  cross  an  inter- 
vening track  to  reach  his  train  may  safely  do  so  con- 
tinues only  so  long  as  the  train  is  stoppc^i  at  the  st£t- 
tion  for  the  purpose  of  receiving  passengers  and  allow- 
ing them  to  alight.  Where  a  reasonable  time  for  this 
I^urpose  has  been  given,  and  the  train  has  started  on 
its  way,  such  implied  assurances  are  at  an  end,  and 
the  obligation  to  look  both  ways  before  crossing  the 
track  revives.  The  failure  to  do  so,  under  such  cir- 
cumstances, is  contributory  negligence  as  matter  of 
law.^^  So  the  invitation  to  cross  the  tracks  at  a  sta- 
tion extends  only  to  persons  who  have  a  desire  to  get 
on  or  off  the  train,  and  does  not  extend  to  people  whose 
only  object  in  crossing  the  track  is  to  do  that  with 
which  the  railroad  company  has  no  concern.^^  So  a 
passenger,  who  undertakes  to  cross  a  track  without 
necessitA',  when  the  company  has  provided  another  and 
a  safe  way,  is  guilty  of  contributory  negligence,  as 
matter  of  law,  in  failing  to  observe  a  train  in  plain 

A  passenger  "o-ho  gets  off  ou  the  wrong  side  of  the  train,  and  is  killed 
while  crossing  the  track,  by  a  locomotive  which  he  could  not  have 
failed  to  see  had  he  used  his  eyes,  is  guilty  of  conti'ibutory  negligence. 
Morgan  v.  Railroad  Co.  (Pa.  Sup.)  16  Atl.  353. 

11  A  person  who  goes  to  a  station  to  meet  an  arriving  passenger 
Is  guilty  of  negligence,  as  matter  of  law,  in  proceeding  to  cross  a 
side  track  between  the  train  and  the  station,  without  looking  for  an 
approaching  train,  which  strikes  him  as  he  is  about  luilf  way  across 
the  track.     Casey  v.  Railway  Co.,  15  Out.  574. 

12  Chaffee  v.  Railroad  Co.,  17  R.  I.  658,  24  Atl.  141;  "Weeks  v.  Rail- 
roail  Co.,  40  La  Ann.  800,  5  South.  72. 

13  Illinois  Cent.  R.  Co.  v.  .Tames,  07  111.  App.  VAd. 

V.  1  FET.CAR.PAS. — 23  (353) 


§  187  CARRIERS  OF  PASSENGERS.  (Cb.  10 

view,    which   strikes   him    while   he   is   crossing   the 
track.'* 

§  137.     SAME— AT  INTERMEDIATE  STATION. 

The  supreme  court  of  Minnesota  has  held  that  a  pas- 
senger who  leaves  his  train  at  an  intermediate  station 
is  gnilty  of  contributory  negligence,  as  matter  of  law, 
in  failing  to  look  and  listen  for  an  approaching  train 
before  crossing  an  intervening  track  on  his  w^ay  back 
to  his  train.  To  a  passenger  who  thus  leaves  his  train 
at  an  intermediate  station  the  company  gives  no  as- 
surance that  trains  will  not  pass  while  he  is  crossing  or 
recrossing  the  track,  and  the  passenger  assumes  the 
risk.  Neither  is  the  conductor's  cry  of  "All  aboard" 
an  assurance  to  a  passenger  who  has  left  his  train  that 

1-1  Bancroft  v.  llnilroad  Corp.,  97  Mass.  275;  Gonzales  v.  Railroad 
Co..  38  N.  Y.  440;  Parson.s  v.  Kailroad  Co.,  85  Hun.  23.  32  N.  Y. 
Snpp.  .598;  Warner  v.  Kailroad  Co.,  7  App.  D.  C.  79.  A  passens^er 
who  lias  alighted  from  a  train,  and  is  ^Yaiting  for  another  train  on  a 
branch  line,  is  guilty  of  coulributory  negligence,  as  matter  of  law, 
in  stepping  on  the  track,  and  cannot  recover  for  injuries  sustained  in 
being  struck  by  an  engine  approaching  behind  him,  the  headlight  on 
which  could  have  been  seen  for  80  yards.  Ensley  Ry.  Co.  v.  Chewn- 
ing.  93  Ala.  24,  9  South.  458.  One  employed  to  carry  mails  from  a  rail- 
road station  to  the  trains  stopped  on  a  side  track  for  Ave  or  ten  min- 
utes,  with  the  mail  bag  on  his  shoulder,  to  convex'se  with  some  friends. 
He  was  killed  by  a  freight  car  running  along  the  side  track.  Held, 
that  he  was  guilty  of  contributory  negligence,  as  matter  of  law.  Dell 
V.  Glass  Co.,  1G9  Pa.  St.  549,  32  Atl.  601.  The  burden  of  proving 
freedom  from  .contributory  negligence  is  not  sustained  by  evidence 
that  a  person  at  a  station  was  run  over  by  a  train  visible  for  900 
feet,  where  it  further  appears  that  the  company  had  provided  bridges 
and  stairways  to  enable  persons  to  cross  the  tracks,  and  had  forbidden 
persons  from  going  on  the  tracks.  Riester  v.  Railroad  Co.  (Sup.)  44 
K.  Y.  Supp.  739. 
(354) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    138 

he  may  cross  the  main  track  in  safety,  without  looldnjji: 
for  approaching-  trains.^  But  in  New  York  it  has  been 
held  that  where  an  excursion  train  stops  at  a  junction 
point,  and  one  of  the  excursionists  leaves  the  car  to  get 
a  drink  of  water,  the  question  whether,  on  his  return, 
he  is  guilty  of  contributory  negligence  in  running 
across  an  intervening  track  when  he  hears  the  signal 
to  start,  without  looking  for  an  approaching  train,  is 
for  the  jury.' 

§  138.     SAME— STEPPING  FROM  CAR  TO  TRACK. 

A  passenger  who  steps  from  a  train  in  the  nighttime, 
after  the  name  of  his  station  has  been  called,  and  the 
train  has  come  to  a  stop,  is  not,  as  matter  of  law,  guilty 
of  conti'ibutory  negligence  in  failing  to  look  for  an  ap- 
proaching train  on  a  parallel  track,  which  strikes  him 
almost  immediately  after  he  leaves  his  train/  So  a 
passenger  getting  off  a  slowly  moving  train,  with  the 
assistance  of  the  conductor,  is  not  guilty  of  negligence 
in  failing  to  be  on  the  lookout  for  a  train  on  a  parallel 
track,  which  strikes  him  as  soon  as  he  touches  the 
ground.' 

§  137.     1  De  Kay  v.  Railway  Co.,  41  :Minn.  178,  48  N.  W.  182. 

2  Wandell  v.  Corbin,  38  Hun,  391,  49  Hun,  G08,  1  N.  Y.  Supp.  795. 

§  138.  1  Philadelphia,  W.  &  B.  R.  Co.  v.  Anderson,  72  Md.  519, 
20  Atl.  2;  Keller  v.  Railroad  Co.,  2  Abb.  Dec.  (N.  Y.)  480.  affirm- 
ing 17  How.  Prac.  (N.  Y.)  102;  Penu.sylvania  R.  Co.  v.  White.  S8 
Pa.  St.  327.  In  this  last  ca.se  it  was  said  that  the  rule  to  stop, 
look,  and  listen  is  not  always  applicable  to  passengers  leaving  a  train 
and  crossing  the  track  to  reach  the  depot  at  the  point  of  destination. 
They  may  rely,  to  some  extent,  on  tlio  i)r«'sumption  that  the  company 
will  perform  its  duty,  and  fm-nisli  tliem  a  safe  means  of  egress. 

2  McDonald  v.  Railroad  Co.,  127  Mo.  38,  29  S.  W.  848. 

(355) 


§  139  CARRIERS  OF  PASSENGERS.  (Ch.  10 

*§  139.     SAME— STREET  CARS. 

In  most  States  the  rule  is  that  a  passenger  who 
alijihts  from  a  street  car  in  a  place  of  safety  is  guilty 
of  contributory  negligence,  as  matter  of  law,  in  walk- 
ing around  the  rear  end  of  the  car  onto  a  parallel  track, 
without  looking,  right  in  front  of  another  car,  which 
strikes  him  the  instant  he  sets  foot  on  the  track.^  And 
a  passenger  on  a  street  railway,  who,  while  the  car  is 
moving,  jumps  from  it  on  the  side  next  to  the  parallel 
track,  and  who  is  struck  by  a  car  running  in  the  op- 
posite direction  as  soon  as  he  lands  on  the  ground,  is 
guilty  of  contributory  negligence  as  matter  of  law.^ 

In  Nebraska,  however,  it  has  been  held  that  a  pas- 
senger who  alights  from  a  street  car  on  the  side  next 
to  a  parallel  track,  from  car  steps  not  barricaded  to 
prevent  it,  is  justified  in  believing  that  due  care  will 
be  exercised  by  the  company  in  regard  to  approach- 

§  139.  1  Buzby  v.  Traction  Co.,  126  Fa.  -t.  559,  17  Atl.  895;  Smith 
V.  Railway  Co.  (Or.)  46  Pac.  186;  Toledo  Cousol.  St.  Ry.  Co.  v.  Lut- 
terbeck,  11  Ohio  Cir.  Ct.  279.  A  passenger  who  alights  from  a  street 
car.  and  proceeds  to  cross  a  parallel  track,  is  guilty  of  contributory 
negligence  in  failing  to  observe  another  car  on  the  parallel  track,  in 
plain  view,  while  he  was  between  the  two  tracks.  Doyle  v.  Railway, 
5  App.  Div.  601,  bJ  N.  Y.  Supp.  440. 

2  Weber  v.  Railway  Co.,  100  Mo.  194,  12  S.  W.  804,  and  13  S.  W. 
587;  MacLeod  v.  Graven,  19  C.  C.  A.  016,  73  Fed.  627.  A  15  year  old 
boy,  stealing  a  ride  on  a  street  car,  who  jumps  from  the  platform  of 
the  car,  in  obedience  to  the  driver's  orders  and  a  threatening  gesture 
by  the  latter,  and  is  run  over  by  another  car  on  a  parallel  track,  is 
chargeable  with  contributory  negligence,  where  that  car  was  in  plain 
view  for  some  time  before  the  accident.  Hogan  v.  liailroad  Co..  121 
N.  Y.  647,  26  N.  E.  950,  reversing  58  N.  Y.  Super.  Ct.  322,  11  N.  Y. 
Supp.  .588. 

(356) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    139 

ing  trains  on  that  track,  and  he  is  not  guilty  of  neg- 
ligence, as  matter  of  law,  in  failing  to  look  for  an  ap- 
proaching train  before  stepping  thereon/  So,  where  a 
cable  railroad  has  a  rule  in  force  that  at  a  junction 
east-bound  trains  shall  clear  the  junction  before  west- 
bound trains  shall  approach  on  a  parallel  track,  a  pas 
senger  who  leaves  an  east-bound  train  is  not  charge- 
able with  contributory  negligence,  as  matter  of  law, 
in  failing  to  stop  and  look  and  listen  before  crossing 
the  parallel  track.  He  has  a  right  to  rely  on  the  rule 
that  no  west-bound  train  shall  approach  the  junction 
until  it  is  cleared  bv  the  east-bound  train.*  And  the 
question  whether  a  passenger,  on  alighting  from  a 
street  car  at  night,  in  a  violent  hailstorm,  is  guilty  of 
contributory  negligence  in  crossing  a  parallel  track, 
with  umbrella  raised,  is  for  the  jury,  where  he  testi- 
fies that  he  was  a  stranger  in  the  city,  was  ignorant  of 
the  existence  of  the  parallel  track,  and  did  not  see  it 
because  covered  with  water. ^ 

3  Omaha  St.  Ry.  Co.  v.  Loehneisen,  40  Neb.  37,  58  N.  W.  535. 

4  Burbridge  v.  Railway  Co.,  36  Mo.  App.  G6i>. 

6  Boyer  v.  Railway  Co.,  54  Minn.  127,  55  X.  W.  825.  A  passenger 
who  gets  off  a  street  car,  and  stops  to  look  for  another  car  on  a 
parallel  track  before  trying  to  cross  it,  is  not  negligent,  as  matter  of 
law,  and  may  recover  for  injuries  sustained  in  being  struck  by  a 
car  on  the  parallel  track,  which  he  had  not  seen,  owing  to  the  fact 
that  his  view  was  obstructed  by  the  car  from  which  he  had  alighted. 
Snell  V.  Railway  Co.,  9  Ohio  Cir.  Ct.  348.  To  avoid  a  truck  on  a 
crowded  street,  a  boy  jumped  on  the  rear  platform  of  a  street  car. 
which  blocked  the  crossing.  The  conductor  kicked  at  him.  and,  to 
avoid  tlie  kick,  the  boy  jumped  from  the  i)latform,  landing  on  the 
parallel  track,  without  looking  for  approaching  cars,  and  was  struck 
by  a  car  moving  at  an  unlawful  rate  of  .><pced,  and  injured.  Held 
that,  though  technically  a  trespasser,  the  question  whether  he  was 


§  .140  CARRIERS  OF  PASSENGERS.  (Ch.    10 

g  140.  WALKING  ALONG  OR  NEAR  TRACK. 

A  passenger  waiting  for  a  train  at  a  station  is 
guilty  of  contributory  negligence,  as  matter  of  law,  in 
walking  along  the  track,  or  in  dangerous  proximity  to 
it,  without  looking  or  listening  for  approaching  trains, 
and  cannot  recover  for  injuries  sustained  in  being 
struck  by  an  approaching  engine.^      So,  a  passenger 

guilty  of  contributory  negligence  in  leaping  without  looking  was  one 
of  fact  for  the  jury;  that . defendant  could  not  escape  the  conse- 
quences of  its  own  negligence  by  pointing  to  an  act  of  the  boy  con- 
tributing to  the  accident,  if  his  conduct  was  induced  by  defendant, 
nor  could  it  have  the  benefit  of  the  boy's  misjudgment  or  want  of 
judgment,  if  the  act  of  its  agent  threw  him  off  his  balance.  McCann 
V.  Railroad  Co.,  117  N.  Y.  505,  28  N.  E.  164,  reversing  56  N.  Y.  Super. 
Ct.  282,  3  N.  Y.  Supp.  418. 

§  140.  1  Holmes  v.  Railway  Co.,  97  Cal.  161,  31  Pac.  8S4;  State  v. 
Grand  Trunk  Railway,  65  N.  H.  663,  23  Atl.  525;  French  v.  Railway 
Co.,  89  Mich.  537,  50  N.  W.  914.  A  person  at  a  station  is  guilty  ot 
contributory  negligence,  as  matter  of  law,  in  sitanding  on  a  track, 
without  looking  or  listening  for  a  train  which  was  visible  a  mile  away 
had  he  looked.  Edgerton  v.  Railroad  Co.,  6  App.  D.  C.  516.  Cir- 
cumstances may,  however,  excuse  the  passenger.  A  passenger  un- 
acquainted with  the  station  grounds  walked,  on  a  dark  night,  towards 
the  station,  between  the  main  track  and  a  siding,  which  was  the 
method  in  common  use  there.  A  train  came  along  on  the  main  track. 
and  he  tried  to  get  out  of  its  way,  but  was  stopped  by  a  coal  car  on 
the  siding,  which  he  had  been  unable  to  see  on  account  of  the  dark- 
ness. Held,  that  the  question  of  his  contributory  negligence  was  for 
the  jury.  Shutt  v.  Railroad  Co.,  149  Pa.  St.  266,  24  Atl.  305.  At  the 
junction  of  a  cable  and  an  electric  street  railway,  the  accumulated 
snow  had  been  banked  by  the  company  to  the  height  of  four  or  live 
feet  along  the  tracks.  Held,  that  a  passenger  who  had  left  the  car 
for  the  purpose  of  completing  her  journey  on  the  electric  car,  about  a 
block  away,  was  not  guilty  of  contributory  negligence  in  walking 
along  the  track  beto'een  the  snow  walls,  even  without  looking  or 
listening;  and  that  she  was  not  thereby  debarred  from  recovering  for 
(358) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    140 

alij2;htiii<j;-  from  a  train  at  uigiit,  who  tinds  liis  pror>,Tcss 
to  the  station  barred  by  a  freight  train  on  an  interven- 
ing track,  and  who  starts  to  go  around  the  train,  and 
falls  into  a  cattle  guard,  with  the  location  of  which  he 
is  familiar,  is  guilty  of  contributory  negligence,  as 
matter  of  law,  whether  the  night  is  dark  or  not."  A 
train  approaching  a  flag  station  at  night  was  signaled 
by  a  bystander,  but  it  did  not  come  to  a  stop  until  it 
had  passed  the  station  platform  about  200  feet.  It 
was  held  that  an  intending  passenger  was  guilty  of 
contributory  negligence,  as  matter  of  law,  in  running 
along  the  track  to  reach  the  train,  and  that  there  could 
be  no  recovery  for  his  death  caused  by  the  train's  back- 
ing towards  the  station;  he  being  unable  to  see  its 
movement  in  the  dark.^      But  a  passenger,  who  has 

injuries  sustained  by  reason  of  tlie  luiexpectecl  baoliinj;  of  the  eliH-tric 
car,  crusliiiig  Iier  between  it  and  tlie  snow  banl<.  Cameron  v.  Trunk 
Line,  10  Wasli.  507,  39  Tac.  128. 

2  St.  Louis,  L  M.  &  S.  Ky.  Co.  v.  Cox.  m  Aik.  KM),  29  S.  W.  .".S. 

3  St.  Louis  &  S.  F.  K.  Co.  v.  ^^■hit;k^  20  C.  C.  A.  190,  74  Fed.  296. 
.Tu(lj-^e  Caldwell  dissented  very  vijjurously,  and  it  would  seem  justly, 
in  this  eas(>.  He  said:  "In  the  ease  at  bar,  10  men— 12  jurymen  and 
4  judges— have  been  called  upon  to  draw  a  eouclusion  from  the  same 
evidence.  Of  this  number,  the  12  men  appointed  liy  lh(>  constitution 
to  be  the  exclusive  triors  of  the  (luestiou  have  found  WMiitile  was  not 
suilty  of  contributory  negligence,  anil  the  learuiMl  and  experienced 
trial  judge  and  one  mendier  of  this  court  have  found  that  the  testi- 
mony abundantly  sup];orts  the  verdict  of  the  Jury,  and  two  judges 
of  lliis  court  ai-e  of  a  diffcrt-nt  oi)ini()u.  The  rule  of  the  supreme 
court  is  that,  unless  'all  reasonalile  men'  would  draw  the  conclusion 
that  the  party  was  guiltj^  of  eontributoi-y  negligence,  the  verdict  of 
the  Jury  must  stand;  but  the  majority  of  th(>  court  liave  substituted 
for  the  rule  of  the  supreme  court  a  rule  wiiich,  if  i)ut  into  words. 
would  read  that  if,  out  of  16  reasonable  men.  2  can  1)0  found  wlio 
draw  conclusions  different  from  the  14,  the  verdict  of  the  2  sli.ijl  iire- 

(331)) 


§  140  CARRIERS  OF  PASSENGERS.  (Ch.  10 

been  carried  beyond  her  destination,  and  discharged 
some  distance  from  the  station,  and  directed  to  walk  to 
the  station  house  over  the  track,  is  not  guilty  of  con- 

vail  over  that  of  the  14.  But  this  statement  of  the  uew  rule  falls  far 
short  of  illustratiup  the  extent  of  the  invasion  of  the  functions  of 
the  jury  in  tliis  case;  for  I  hazard  nothing  in  saying  that  a  fair  and 
impartial  jury  cannot  be  found  in  this  circuit  of  11  states  who  would 
not,  upon  the  evidence  in  this  record,  return  the  same  verdict  that 
was  returned  by  the  jury  that  tried  this  case.  *  *  *  It  is  only  in  X'ecent 
times,  and  since  corporations  have  absorbed  the  capital  and  business 
pm-suits  of  the  country,  that  a  tendency  has  developed,  in  some- 
courts,  to  impinge  on  the  functions  of  the  jury  and  the  constitu- 
tional rights  of  suitors.  This  invasion  of  the  functions  of  the  jury 
is  attempted  to  be  justified  upon  the  ground  that  juries  are  prejudiced 
against  corporations,  and  that  it  is  the  duty  of  the  courts  to  protect 
them  from  such  prejudice.  This  is  an  unfounded  assumption.  The 
danger  to  life  and  property  growing  out  of  the  management  and 
operation  of  railroads  has  been  greatly  lessened  in  recent  years, 
and  this  improvement  is  largely  due  to  the  verdicts  of  juries.  Cor- 
porations formed  for  pecuniary  profit  act  from  pecuniary  considera- 
tions alone,  and  it  was  not  until  it  became  obvious  that  it  was 
cheaper  to  incur  the  expense  necessary  to  give  greater  security  to 
life  and  property  in  the  operation  of  their  roads  than  it  was  to  pay 
the  damages  awarded  by  the  verdicts  of  juries  for  negligently  failing 
to  provide  reasonable  safeguards  that  railroad  companies  exercised 
more  care,  and  adopted  better  and  safer  methods,  for  the  operation 
of  their  roads.  Juries  whose  intelligence  and  impai'tiality  are  im- 
pugned have  no  opportunity  to  be  heard  in  their  own  defense.  If 
they  were  accorded  an  opportunity  to  answer  this  charge  of  the 
judges  against  them,  they  would  probably  content  themselves  with  a 
reference  to  the  'mote'  and  the  'beam,'  with  an  earnest  asseveration 
that  the  beam  was  not  in  their  eye."  In  Mills  v.  Railroad  Co.,  5 
App.  Div.  11,  39  N.  Y.  Supp.  280,  the  facts  were  as  follows:  PlaintlfE. 
who  was  familiar  with  the  surroundings,  alighted  from ,  a  train  a 
short  distance  from  the  passenger  station,  at  a  village  where  it  stopped 
only  for  coal  and  water.  Starting  for  the  station,  on  another  ti-ack, 
while  under  the  coal  chute,  which  extended  over  the  tracl\,  and  left 
no  room  to  get  off  at  the  sides,  he  was  struck  by  a  train  coming  from 
(360) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    141 

tributory  negligence,  as  matter  of  law,  in  attempting 
to  walk  over  a  cattle  pit  in  the  track/ 

g  141.     CRAWLING  UNDER  OR  BETWEEN  CARS. 

A  passenger  or  otJier  person  on  his  way  to  or  from  a 
railroad  station  is  guilty  of  negligence,  as  matter  of 
law,  in  attempting  to  crawl  through  or  under  cars  in  a 
train  which  obstructs  his  further  progress,  where  he 
knows  that  an  engine  with  steam  up  is  attached  to  the 
train,  and  is  liable  to  start  at  any  moment.  It  is  diffi- 
cult to  conceive  of  an  act  more  recklessly  careless  than 
such  an  attempt.^  But  where  a  passenger  is  directed 
bv  the  ticket  agent  to  take  a  train  awav  from  the  de- 

f  C7  I. 

pot,  the  question  whether  she  is  guilty  of  contributory 
negligence  in  passing  through  an  open  space  between 
two  cars  is  one  of  fact  for  the  jury,  where  she  testifies 
that  she  looked  for  approaching  cars  before  going  into 
the  open  space,  and  failed  to  discover  slowly  moving 
cars  detached  from  the  engine,  w^hich  struck  one  of  the 
standing  cars,  and  thus  closed  up  the  open  space  while 
plaintiff  was  walking  through  it.^ 

iu  front,  and  which  he  knew  was  flue  at  about  that  time.  The  train 
could  have  been  seen  some  distance  ahead,  but,  just  before  being 
struck,  smoke  from  an  engine  got  in  his  eyes.  There  was  also  con- 
sidoralile  noise  from  other  engines,  and  it  was  imi)ossi1)le  to  move 
quickly,  owing  to  the  track's  being  wet  from  tlie  water  tank.  Held 
that,  as  matter  of  law,  he  was  guilty  of  contributory  negligence. 

*  New  York,  C.  &  St.  L.  Ry.  Co.  v.  Doane,  ll.l  Ind.  4:^5,  17  N.  E.  913. 

§  141.  1  Smitli  v.  Kailroad  Co.,  55  Iowa,  33,  7  N.  W.  31)8;  Chicago 
&  X.  W.  R.  Co.  V.  Coss,  73  111.  304;  Chicngo.  K.  &  Q.  U.  Co.  v.  Dewey, 
lit;  111.  2."):    .Memphis  ic  C.  K.  Co.  v.  Coiie'and,  Gl  Ala.  370. 

a  Alleuder  v.  Ituilroad  Co.,  37  Iowa,  274. 

(3G1) 


§  143  CARRIERS  OF  PASSENGERS.  (Ch.  10 

§  142.     BOARDING  CAR  AHEAD  OF  TIME. 

It  is  not  contributory  negligence,  as  matter  of  law, 
for  a  passenger  to  enter  a  passenger  car  a  few  minutes 
in  advance  of  the  time  fixed  by  the  rules  of  the  com- 
pan}-,  of  which  he  is  ignorant/  Neither  is  it  negli- 
gence per  se  for  a  passenger  to  enter  a  coach  at  a  sta- 
tion, at  about  the  time  designated  for  the  departure  of 
the  train,  and  in  apparent  readiness  for  passengers,  ex- 
cept that  the  locomotive  has  not  yet  been  attached, 
where  the  passenger  is  ignorant  of  the  rule  of  the  com- 
pany forbidding  passengers  to  get  on  the  cars  until 
the  train  is  made  up." 

§  143.     BOARDING  CAR  NOT  DRAWN  UP  AT  STATION 

PLATFORM. 

A  railroad  company  may  make  reasonable  rules  re- 
specting the  time,  mode,  and  place  of  entering  the  cars, 
and  the  passenger  must  comply  with  them  if  they  are 
known  to  him.  He  cannot  violate  them,  and  pursue 
another  course,  and  hold  the  company  liable  for  dam- 
ages thus  occasioned,  which  could  have  been  avoided 
by  conforming  to  the  rules  and  regulations  of  the  com- 
pany, even  though  the  jury  may  believe  that  an  ordi- 
narily prudent  person  would  or  might  have  adopted, 
the  same  course.  But  the  mere  existence  of  a  plat- 
form in  front  of  the  depot  is  not,  as  matter  of  law,  nec- 
essarily notice  to  the  passenger  that  the  train  will  be 
drawn  up  at  that  place  to  receive  him,  and  that  the 

§  142.     1  Western  Md.  R.  Co.  v.  Heiokl,  74  Md.  510,  22  Atl.  323. 
2  Root  r.  Railway  Co.,  33  Fed.  8.5S. 
(362) 


•Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    143 

company  prohibits  passengers  from  entering  them  else- 
where. If  a  station  room  is  full,  or  if  it  is  intolerably 
offensive  by  reason  of  tobacco  smoke,  so  that  a  passen- 
ger has  good  reason  for  not  remaining  there,  it  will 
justify  his  endeavor  to  enter  t-he  cars  at  as  early  a 
period  as  possible,  though  they  are  not  drawn  up  at 
the  station  platform,  but  are  standing  some  distance 
away;  and  if,  in  so  doing,  he  receives  an  injury  from 
the  unsafe  or  dangerous  condition  of  the  station  plat- 
form or  steps,  in  a  place  where  passengers  would  nat- 
urally go,  the  company  is  liable  therefor.^  So  where 
the  sleeping  coach  of  a  long  train  is  outside  of  the  de- 
pot  yard,  it  is  not  contributory  negligence  for  a  pas- 
senger to  approach  the  coach  by  a  sidewalk  outside  the 
depot  yards,  leading  to  it  in  a  direct  route,  and  con- 
structed by  the  railroad  company,  instead  of  entering 
one  of  the  front  coaches  at  the  depot  platform,  an<l 
walking  through  the  train  to  the  sleeping  car;  and  the 

§  143.  1  McDonald  v.  Railroad  Co.,  26  Iowa,  124.  Although  a 
railroad  conii'auy  may  have  provided  a  platform  Avhere  the  train.s 
regularly  stop  for  the  ingress  and  egress  of  passengers,  it  is  not 
pel-  se  contri))Utory  negligence  for  a  passenger  to  attempt  to  enter  a 
train  at  a  place  other  than  the  platform,  in  the  absence  of  notice  thai 
passengers  will  be  received  only  at  such  platform,  and  are  prohibited 
from  attempting  to  enter  the  car  at  any  other  place.  And  especially 
Is  this  true  where  the  passenger  is  directed  to  take  the  car  elsewhere 
than  at  the  platform  by  a  person  wearing  the  company's  uniform,  and 
justifiably  supposed  to  be  an  otHcial.  Baltimore  &,  O.  R.  Co.  v.  Kane, 
69  Md.  11,  13  Atl.  387;  s.  c.  17  Atl.  1032.  It  cannot  be  said,  as 
matter  of  law,  that  getting  on  a  passenger  train  at  a  place  other 
than  the  .station  platform  is  negligence  on  the  part  of  the  passenger 
contributing  to  an  injury  received,  while  entering  the  car,  becausi» 
of  the  violent  and  negligent  starting  of  the  train,  ytuncr  v.  Penn- 
sylvania Co.,  y8  Ind.  oa4. 

(3G3) 


§    143  CARRIERS   OP  PASSENGERS.  (Ch.    10 

company  is  liable  for  an  injury  to  the  passenger  caused 
by  a  defect  in  the  sidewalk.^  A  passenger  is  not  guilty 
of  contributory  negligence  in  entering  a  caboose  of  a 
mixed  freight  and  passenger  train  at  a  point  50  feet 
from  the  platform,  without  notifying  the  conductor, 
where  the  rules  of  the  company  require  persons  taking 
passage  on  such  trains  to  get  on  from  the  roadbed,  or 
wherever  the  convenience  of  those  in  charge  of  the 
train  demands.' 

In  England,  however,  it  has  been  held  that  where  a 
railway  company  provides  a  proper  crossing  over  its 
tracks  for  the  use  of  passengers  desiring  to  take  its 
trains,  a  passenger  who  has  knowledge  of  the  crossing 
so  provided  cannot  recover  for  injuries  sustained  in  at- 
tempting to  cross  at  another  place.*  So,  one  who,  in 
the  nighttime,  goes  into  a  railroad  yard,  at  a  place 
where  the  company  is  not  accustomed  to  receive  pas- 
sengers, and  who,  without  the  knowledge  of  those  in 
charge  of  a  freight  train  standing  there,  attempts  to 
enter  the  caboose  attached  to  the  train,  is  guilty  of 

2  Moses  V.  Railroad  Co.,  39  La.  Ann.  64'J,  2  South.  567. 

8  Louisville  &  N.  R.  Co.  v.  Long,  M  Ky.  410,  22  S.  W.  747.  A 
pa.ssenger,  standing  on  a  passenger  platform  at  a  station,  who  sees 
a  train  with  an  engine  attached  standing  on  the  track  some  distance 
away,  but  headed  towards  him,  has  a  right  to  suppose  that  it  will  be 
brought  up  ta  the  station  to  take  on  pas.sengers;  and  his  waiting  in 
the  passenger  station  for  the  train  to  come  up  and  stop  is  not  neg- 
ligence contributing  to  an  injury  received  in  the  dark  by  falling  over 
an  obstruction  while  hastily  going  to  the  train,  after  being  notified  by 
the  ticket  agent  that  it  would  not  come  to  the  passenger  station.  Nor 
is  his  running  for  the  train,  instead  of  walking,  contributory  negli- 
gence, as  matter  of  law.  MacLeuaan  v.  Kailroad  Co.,  52  N.  Y.  Super. 
Ct.  22. 

4  Williy  V.  Railway  Co.  [18TG]  25  Law  T.  (N.  S.)  244. 

(364) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    144 

contributory  negligence,  and  cannot  recover  for  inju- 
ries sustained  in  the  attempt.^  Wliere  an  open  pas- 
senger car  is  standing  on  the  track,  not  couplwl  to  the 
rest  of  the  train,  and  the  conductor  warns  a  passenger 
not  to  enter  tlie  car  until  it  has  been  coupled,  and 
moved  to  a  point  exactly  opposite  tlie  depot,  it  is  con- 
tributory negligence  for  the  passenger  to  enter  the  car 
before  it  has  been  coupled  and  moved  to  the  point  des- 
ignated by  tJie  conductor;  and  this  is  true,  even  if  the 
car,  before  it  was  coupled  and  moved,  was  standing  at 
the  place  where  passengers  usually  board  the  train." 

§  144.     BOARDING  OR   LEAVING  TRAIN  ON  WRONG 
SIDE,  OR  BY  IMPROPER  ENTRANCE  OR  EXIT. 

The  courts  are  united  on  the  proposition  that  a  pas- 
senger who  arrives  at  a  station  before  train  time,  and 
who  deliberately  waits  for  the  train  on  the  side  of  the 
track  away  from  the  depot  platform,  is  guilty  of  neg- 
ligence in  attempting  to  enter  the  train  on  that  side, 
where  the  company  has  provided  a  safe  platform  on 
the  other/ 

6  Haase  v.  Xavigation  Co.,  19  Or.  354,  24  Pae.  238. 

6  Tillet  V.  Railroad  Co..  115  N.  C.  602,  20  S.  E.  480.  "WhiU^  the 
conductor  may,  on  the  one  hand,  excuse  a  debarking  passeugoi-  from 
contributory  negligence,  by  advising  him  to  get  off.  before  it  has 
ceased  to  move,  he  may,  on  the  other  hand,  make  the  passenger's 
conduct  culpable,  where  he  gives  him  an  unheeded  warning  not  to 
enter  such  open  ear  till  it  has  been  removed  to  another  point."     Id. 

§  144.  1  Michigan  Cent.  R.  Co.  v.  Coleman,  28  Mich.  440.  A  pas- 
senger who  goes  on  the  side  of  a  train  away  froui  the  station  plat- 
form, and  presumably  not  the  place  arranged  to  receive  passengers, 
and,  finding  no  place  of  acces.s,  attempts  to  climb  upon  the  train  from 
between  the  cars,  with  the  barrier  of  a  nilling  before  liim   to   be 

(.'JC.S) 


§  144  CARRIERS  OF  PASSENGERS.  (Ch.  lO^ 

But  on  the  question  of  the  passenger's  contributory 
negligence  in  alighting  from  the  wrong  side  of  the 
train,  there  is  some  conflict  in  the  authorities.  The 
weight  of  authority  and  of  reason  is  that  the  existence 
of  a  safe  landing  place  on  one  side  of  the  track  does  not 
render  a  passenger  guilty  of  contributory  negligence, 
as  matter  of  law,  in  getting  off  on  the  other  side,  unless 
the  safe  landing  place  is  made  so  conspicuous  as  to  be 
easily  seen  by  the  passenger,  or  unless  he  knows  of  its 
existence.''  A  passenger,  not  familiar  with  a  station, 
is  not  guilty  of  contributory  negligence,  as  matter  of 
law,  in  alighting  from  a  train  on  the  side  away  from 
the  station  platform.^  So  where  a  train  is  brought  to 
a  standstill  on  an  elevated  trestle,  and  the  railroad 
company  has  provided  a  safe  landing  place  on  the 
south  side  of  the  cars,  but  no  guards  or  barriers  on  the 
north  side,  to  prevent  passengers  leaving  there,  the 
question  whether  a  passenger,  who  is  ignorant  of  the 

scaled  when  he  reaches  the  level  of  the  car  floor,  and  who,  in  so  do- 
ing, places  his  foot  upon  the  bumper,  where  it  is  crushed  by  a  motion 
of  the  train,  is  guilty  of  contribiitory  negligence,  as  matter  of  law.. 
Wardlaw  v.  Railway  Co.  (Cal.)  42  Tae.  1075. 

2  Poole  V.  Railroad  Co.,  100  Mich.  879,  59  N.  W.  390.     As  to  negli- 
gence of  railroad  company  in  this  resiiect,  see  ante,  §  62. 

s  Dickens  v.  Railroad  Co.,  1  Abb.  Dec.  500,  *40  N.  Y.  23.  The 
question  whether  a  passenger  is  guilty  of  contriliutory  negligence  in. 
alighting  on  the  side  of  the  car  away  from  the  depot  is  one  of  fact 
for  the  jury,  where  it  is  shown  that  it  is  not  unusual  for  passengers 
to  alight  on  that  side,  which  is  the  one  nearest  the  town.  Plopper 
v.  Railroad  Co.,  13  Hun,  625.  Where  the  rear  car  of  a  train  is 
stopped  on  a  street  CTossing,  and  no  warning  is  given  as  to  which 
side  passengers  shall  leave  the  car,  a  passenger  is  not  chargeable 
with  negligence,  as  matter  of  law,  in  leaving  the  car  on  one  siJe,- 
rather  than  on  the  other.  Van  Ostran  v.  Railroad  Co.,  35  Hun,  590. 
(366) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    144 

siirroiindiugs,  but  who  has  observed  passengers  get- 
ting off  on  the  north  side  at  another  station,  is  guilty 
of  contributory  negligence  in  stepping  from  the  car  on 
the  north  side,  is  one  of  fact  for  the  jury,  and  a  verdict 
in  plaintiff's  favor  cannot  be  disturbed.*  The  supreme 
court  of  the  United  States  has  even  held  that  a  pas- 
senger who  leaves  a  car  on  the  side  prohibited  by  the 
printed  regulations  of  the  company,  posted  in  the  car, 
is  not  thereby  debarred  from  recovering  for  injuries, 
where  such  regulation  was  habituallv  disregarded  bv 
passengers,  with  the  acquiescence  of  the  conductor, 
and  the  servants  of  the  road  about  the  station.^  But 
a  passenger  who  leaves  a  train  on  the  side  away  from 
the  depot,  when  on  the  depot  side  there  is  a  large  well- 
lighted  platform,  which  fact  he  could  have  known  by 
the  exercise  of  ordinary  diligence,  assumes  the  risk  of 
injury  iu  alighting  on  the  wrong  side.^  It  has  even 
been  held  that  where  a  railroad  company  has  provided 
a  safe  platform  for  its  passengers  on  one  side  of  its 

4  Kentucky  &  I.  Bridge  Co.  v.  McKinney,  9  Incl.  App.  213,  36  N. 
E,  448.  Thongb  a  railroad  company  has  provided  a  platform  on  one 
side  of  its  track,  on  which  passengers  may  alight,  an  attempt  of  a 
passenger  to  get  off  on  the  other  side  is  not  negligence  per  se;  but 
the  question  is  for  the  jury,  to  be  determined  on  all  the  evidence  in 
the  case.     McQuilken  v.  Railroad  Co.,  64  Cal.  463,  2  Pac  46. 

5  Chicago,  M.  &  St.  P.  Ky.  Co.  v.  Lowell,  151  U.  S.  209,  14  Sup.  Ot. 
281.  "A  raihvay  company  does  not  discliarge  its  entire  obligation  to 
the  public  by  a  notice  of  a  certain  requirement,  permitting  thai  re- 
quirement to  be  habitually  disregarded,  and  then  proceeding  on  the 
theory  that  every  one  is  bc.und  to  comjily  wilh  it.  It.  in  such  a  case, 
an  accident  occur,  the  defendant  should  not  be  pcriniitcd  to  rely  ex- 
clusively on  a  breach  of  its  regulation."     Id. 

<■'  Louisville  &  N.  XL  Co.  v.  Kickett.s,  'M  Ky.  44,  27  S.  W.  S(i(»:  Id., 
93  Ky.  116,  19  S.  W.  182. 


^    l.|4  CARRIERS   OF   PASSENGERS.  (Ch.    10 

track,  a  passenger  who,  without  necessity,  gets  off  on 
the  wrong  side,  is  guilty  of  contributory  negligence, 
though  the  company  has  adopted  no  means  to  prevent 
•passengers  from  getting  off  on  the  wrong  side,  and 
though  passengers  habitually  get  off  on  the  wrong 

side." 

In  a  few  cases  the  question  has  been  raised  wheth- 
er a  passenger  is  guilty  of  contributory  negligence  in 
leaving  tJie  car  at  one  end,  rather  than  at  the  other. 
In  Michigan  it  has  been  held  that  it  is  not  negligence, 
as  matter  of  law,  for  a  passenger  to  leave  a  car  at  its 
rear  end,  in  the  absence  of  any  rule  or  general  custom 
making  the  forward  end  the  only  proper  place.**  But 
in  Illinois  it  has  been  held  that  where  a  railroad  train 
stops  on  a  dark  night  at  a  street  crossing,  and  the  con- 
ductor is  at  hand  on  the  front  of  the  car,  assisting  pas- 
sengers to  alight,  a  passenger  who,  with  knowledge  of 
this  fact,  undertakes  to  alight  at  the  rear  of  the  car, 
where  it  is  so  dark  as  to  render  it  impossible  for  her  to 
discern  where  she  is  about  to  laud,  is  not  in  the  exer- 
cise of  ordinary  care,  as  matter  of  law,  and  she  cannot 
recover  for  injuries  sustained  in  falling  into  a  culvert 
near  the  track.® 

A  passenger  cannot  be  convicted  of  negligence  in 
getting  on  one  car,  rather  than  another,  provided  both 
are  intended  for  the  use  of  passengers.  Thus,  a  pas- 
senger about  to  board  a  train  of  cable  cars,  consisting 
of  two  trailers  aud  the  grip  car,  is  not  chargeable  with 

7  Peiinsyh-ania  R.  Co.  v.  Zebe,  37  Pa.  St.  420,  33  Pa.  St.  31S. 

8  Cartwright  y.  Railway  Co.,  52  Mich.  606.  IS  N.  W.  380. 
»  Chicago,  R.  I.  &  P.  R.  Co.  v.  Dingman,  1  111.  App.  1^ 

(368) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    144 

contributory  negligence  in  passing  by  the  trailers  to 
get  on  the  grip  car  in  front.^*'  But  a  person  who 
mounts  the  front  platform  of  the  express  car  in  a  train 
about  to  start,  with  knowledge  that  this  car  is  in  the 
exclusive  control  of  the  express  company,  and  that  it  is 
unlawful  for  passengers  to  enter  it,  takes  upon  himself 
the  hazards  of  his  voluntary  act,  and  cannot  recover 
for  injuries  sustained  in  falling  from  the  platform,  in 
consequence  of  the  express  agent's  refusal  to  unlock 
the  car  door,  so  as  to  enable  him  to  reach  the  passenger 
coaches  in  the  rear/^ 

As  to  the  duty  of  a  passenger  in  leaving  a  combina- 
tion baggage  and  passenger  coach  by  the  rear  door, 
rather  than  b}'  the  side  door,  the  authorities  are  in  con- 
flict. In  Pennsylvania  it  has  been  held  that  a  passen- 
ger is  guilty  of  negligence  in  leaving  such  a  car 
through  the  side  door,  at  which  baggage  is  received 
and  discharged,  where  at  each  end  of  the  car  there  are 
the  usual  conveniences  for  ingress  and  egress,  consist- 
ing of  a  door,  platform,  steps,  and  railing.^"  In  Texas, 
on  the  contrary,,  it  has  been  held  that  the  mere  fact  that 
a  railroad  company  has  furnished  such  a  coach  with  a 
phitform  and  steps  at  the  rear  end  does  not,  as  mat- 
ter of  law,  render  a  passenger  guilty  of  contributory 

10  Cohen  v.  Railroad  Co.,  9  C.  C.  A.  228.  60  Fed.  G08;  Hawkius  v. 
Railway  Co.,  3  Wash.  St.  592,  28  Fac.  1021. 

11  Ohio  &  M,  R.  Co.  V.  AUender,  47  IQ.  App.  484.  But  it  has  been 
held  not  contributory  negligence,  as  matter  of  law,  foi*  one  to  board 
the  plntform  of  a  baggage  car  while  the  train  is  in  motion,  and,  find- 
ing the  car  door  locked,  to  remain  tliere;  and  there  may  be  a  recov- 
ery for  his  death  in  a  collision  with  another  train.  Illinois  Cent.  R. 
Co.  V.  O'Keefe,  63  111.  App.  102. 

12  Deery  v.  Railroad  Co.,  163  Pa.  St.  403,  30  Atl.  162. 

V.  1   FET.CAIM'AS. 24  '3^9) 


§  145  CARRIERS  OF  PASSENGERS.  (Ch.  10 

negligence  in  attempting  to  leave  the  car,  in  the  night- 
time, by  the  side  door  of  the  baggage  compartment, 
Avhich  is  almost  exclusively  used  by  passengers  for 
that  purpose.''  So  it  is  not  negligence,  as  matter  of 
law,  for  a  drover  accompanying  stock  to  attempt  to 
enter  a  stationary  car  containing  his  horses  by  the  side 
door,  instead  of  a  door  at  the  end,  which  is  used  only 
in  cases  of  emergency,  or  when  drovers  have  occasion 
to  enter  the  car  while  the  train  is  in  motion/* 

§  145.  SAME— FRONT  PLATrORM  OF  STREET  CAR. 

An  attempt  to  board  a  stationary  street  car  by  the 
front  platform  is  not  negligence  per  se.'  Neither  is  a 
passenger  guilty  of  negligence,  as  matter  of  law,  in  at- 
tempting to  alight  from  the  front  platform  of  a  stand- 
ing car,  rather  than  the  rear.^  In  an  early  Maryland 
case,  however,  it  was  held  negligence,  as  matter  of  law, 

IS  Missouri  Pac.  Ry.  Co.  v.  Long,  81  Tex.  253,  16  S.  W.  1016. 

14  Pitclier  v.  Railway  Co.,  61  Hun,  623,  16  N.  Y.  Supp.  62;  Id.,  55 
Hun,  604,  8  N.  Y.  Supp.  389.  affirmed  in  137  N.  Y.  568,  33  N.  E.  339. 

§  145.  1  Pfeffer  v.  Railway  Co.,  4  Misc.  Rep.  465,  24  N.  Y.  Supp. 
490,  affirmed  in  144  X.  Y.  63G,  39  N.  E.  494.  It  is  not  negligeuce  per 
se  to  attempt  to  mount  the  front  platform  of  a  standing  car,  on  invita- 
tipn  of  the  driver.  De  Rozas  v.  Railroad  Co.,  13  App.  Div.  296,  43  N. 
Y.  Supp.  27. 

2  Mulhado  v.  Railroad  Co.,  30  N.  Y.  370.  A  13  year  old  boy,  who 
attempted  to  board  a  street  car  on  the  front  platfonn,  was  told  by 
the  driver  to  get  on  in  the  rear.  At  the  rear  platform,  he  was  told 
by  some  one  to  get  on  in  front.  In  passing  to  the  front,  he  slipped 
in  the  snow,  which  had  been  left  by  the  company  sloping  towards 
the  track,  and  which  had  become  smooth  and  liard.  Held,  that  the 
question  of  contributory  negligence  was  for  the  jury,  and  not  the 
court.  Mowrey  v.  Railway,  51  N.  Y.  666,  reversing  66  Barb.  (N. 
Y.)  43. 
(370) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    146 

for  a  person  to  get  off  the  front  platform  of  a  street  car 
in  known  violation  of  the  rnles  of  the  company.^ 

In  Missouri  a  statute  *  relating  to  street  railroads  in 
the  city  of  St.  Louis  declares  that  such  railroads  shall 
not  be  liable  for  injuries  occasioned  by  getting  on  or  off 
the  cars  at  the  front  platform.  Under  this  statute,  the 
company  is  relieved  from  liability  in  all  cases  except 
where  it  appears  that  the  injuries  were  sustained  by 
reason  of  some  negligence  on  the  part  of  the  company 
wholly  independent  of  the  fact  that  the  passenger  at- 
tempted to  get  on  or  off  the  front  platform.^ 

§  146.     ALIGHTING    AT    DANGEROUS    PLACE— INVI- 
TATION. 

Where  the  name  of  a  station  has  been  announced, 
and  the  train  has  been  brought  to  a  standstill,  a  pas- 
senger is  not  guilty  of  contributory  negligence  in  as- 
suming that  the  station  has  been  reached,  and  in 
alighting  in  the  dark,  and  he  may  recover  for  injuries 
sustained  in  falling  through  a  trestle  on  which  the 
train  had  been  brought  to  a  stop.^     So,  if  a  conductor 

8  Baltimore  City  Pass.  Ry.  Co.  v.  Wilkinson,  30  Md.  224.  A  passen- 
ger is  guilty  of  negligence,  as  matter  of  law,  in  climbing  over  the 
dasher  on  the  front  platform  of  a  street  car,  and  cannot  recover  for 
Injuries  sustained  by  being  caught  between  the  car  and  another  car 
on  a  parallel  track.     Fry  v.  Railway  Co.,  17  Phila.  61. 

4  Act  Mo.  .Tan.  16,  1800. 

e  McKeon  v.  Railway  Co.,  42  Mo.  70.  Injuries  to  a  passenger  while 
Btanding  on  the  front  platform,  with  the  intention  of  gettmg  off, 
caused  by  being  struck  by  the  brake  handle  at  the  middle  of  the  dash- 
board, are  not  "occasioned"  by  getting  off  the  front  platform,  within 
the  meaning  of  the  statute.     Nissen  v.  Railway  Co.,  19  Mo.  App.  662. 

§  146.  1  Richmond  &  D.  R.  Co.  v.  Smith,  !»2  Ala.  237.  0  South.  223; 
McGee  v.  Railway  Co.,  92  Mo.  208,  4  S.  W.  739;    Terre  Haute  &  I.  K. 

(371) 


§  146  CARRIERS  OF  PASSENGERS.  (Ch.  10 

is  acquainted  with  the  surroundings  of  a  place  where 
a  train  is  to  stop,  knows  it  to  be  dangerous,  and  directs 
a  passenger  to  get  off,  the  question  whether  the  pas- 
senger is  guilty  of  contributory  negligence  in  alighting 
in  the  nighttime,  without  taking  any  precautions,  is 
one  of  fact  for  the  jury,  and  their  finding  in  plaintiff's 
favor  will  not  be  disturbed.^  Where  a  conductor  has 
promised  to  transfer  a  shipper  of  stock  to  another  train 
at  a  station,  but,  instead,  transfers  him  at  a  different 
and  dangerous  place  in  the  nighttime,  the  failure  of 
the  shipper  to  notice  a  water  way  between  the  tracks, 
to  which  his  attention  has  not  been  called,  is  not  con- 
tributory negligence.^  Neither  is  it  contributory  neg- 
ligence, as  matter  of  law,  for  a  passenger  to  attempt  to 
get  off  a  train  after  it  has  stopped  at  a  point  beyond 
the  station  platform.*     And  where  an  elevated  train 

€o.  V.  Buck,  9G  Ind.  346,  3G0;  Philadelphia  &  R.  R.  Co.  v.  Edelstein 
(Pa.  Sup.)  16  Atl.  M7;  Penusylvauia  Co.  v.  Hoagland,  78  Ind.  203. 
As  to  negligence  of  the  carrier  in  this  respect,  see  ante,  §§  58,  68. 

2  Southern  Kansas  Ry.  Co.  v.  Painter,  53  Kan.  414,  36  Pac.  731. 
Where  a  train  is  stopped  on  an  embankment  about  six  feet  high,  and 
passengers  are  directed  to  get  off  by  the  conductor,  a  passenger  who 
does  so,  in  order  not  to  miss  another  train  then  waiting  at  the  sta- 
tion, is  not  guilty  of  contributoiy  negUgence,  though  he  testified  that 
he  knew  the  place  to  be  dangerous.  Hinshaw  v.  Railroad  Co.,  118  X. 
C.  1047,  24  S.  E.  426. 

8  Griffith  V.  Raihvay  Co.,  9S  Mo.  168,  11  S.  W.  .559. 

*  Raub  V.  Railway  Co.,  103  Cal.  473,  37  Pac.  374;  McDonald  v.  Rail- 
way Co.,  88  Iowa,  345.  55  N.  W.  102.  Where  a  train  runs  beyond  a 
passenger's  station,  at  night,  without  his  knowledge,  and  the  ground 
is  so  covered  with  snow  that  its  surface  cannot  be  distinguished,  it 
is  not  negligence  for  the  passenger  to  assume,  on  the  carrier's  invita- 
tion to  alight,  that  his  car  is  at  the  station  platform.  Chesapeake  & 
O.  Ry.  Co.  V.  Friel  (Ky.)  39  S.  W.  704.  It  is  not  contributory  negli- 
:genee,  as  matter  of  law,  for  a  passenger  to  attempt  to  leave  a  train 
(372) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    146 

is  Stopped  in  the  nighttime  on  a  curve,  so  that  there  is 
necessai'ilT  a  space  of  14  inches  between  the  end  of  the- 
car  steps  and  the  station  platform,  and  the  hole  is  un- 
guarded and  unlighted,  a  passenger,  unconscious  of 
danger,  is  under  no  obligation,  as  matter  of  law,  to  look 
before  she  puts  her  foot  down;  but  it  is  a  question  of 
fact  for  the  jury  to  decide,  not  only  whether  she  should 
have  been  more  vigilant,  but  also  whether,  if  she  had 
looked,  she  could  have  seen  the  hole  notwithstanding 
the  darkness/  But  a  passenger  about  to  board  a  train 
at  an  elevated  railroad  station,  who  knows  that  there 
is  an  open  space,  from  two  to  six  inches  wide,  between 
the  station  platform  and  the  car,  is  guilty  of  contrib- 
utory negligence,  if,  without  looking,  she  steps  into  the- 
open  space.® 

It  should  be  borne  in  mind  that  only  when  the  an- 
nouncement of  a  station  is  made  by  the  carrier's  serv- 
ants is  the  passenger  entitled  to  act  on  the  assumption 
that  the  train  has  arrived  there  when  it  subsequently 
stops.  He  acts  at  his  peril  when  the  announcement  is 
made  by  a  fellow  passenger.  Contributory  negligence 
is  attributable  to  a  passenger,  who,  without  any  inti- 
mation from  the  trainmen  that  it  is  his  stopping  place, 
while  the  train  is  halting  a  moment  on  a  trestle, 
alights  hurriedly  in  the  dark,  without  looking  for  a 

which  has  been  stopped  a  few  feet  from  the  station  platform,  where 
It  Is  customai-y  for  passengers  to  get  off  at  that  place.  Carroll  v. 
Burleigh  (Wash.)  4G  Pac.  232. 

c  Boyce  v.  Railway  Co.,  118  N.  Y.  314,  23  N.  E.  304,  affirming  54 
N.  Y.  Super.  Ct.  28G. 

6  Hanrahan  v.  Railway  Co.,  53  Hun,  420,  6  N.  Y.  Supp.  305,  affirmed 
130  N.  Y.  658,  29  N.  E.  1033. 

(373) 


§  147  CARRIERS  OF  PASSENGERS.  (Ch.  10 

place  to  alight,  and  sustains  injury  from  falling  into  a 
canon  beneath  the  trestle;  and  this  is  true,  though 
other  passengers  believed  that  it  was  a  regular  sta- 
tion, and  some  of  them  were  preparing  to  leave  the 
train,  and  though  plaintiff  was  told  by  one  of  them  to 
get  out  quick,  as  the  train  would  stop  only  a  few  mo- 
ments/ So,  though  the  name  of  a  station  has  been 
announced,  a  passenger  is  guilty  of  contributory  neg- 
ligence in  leaving  one  of  the  rear  cars  of  a  long  train 
in  the  dark,  and  w^hile  still  in  motion,  and  cannot  re- 
cover for  injuries  sustained  in  falling  through  a  tres- 
tle.« 

§  147.     SAME— JUMPING  FROM  CAR  STEPS  TO 

GROUND. 

Where  a  train  is  drawn  up  at  a  station  platform  in 
such  a  manner  as  to  compel  a  passenger  to  make  a 
jump  from  the  car  steps  to  tJie  station  platform,  a  fe- 
male passenger  is  not  guilty  of  negligence,  as  matter 
of  law,  in  attempting  the  jump,  though  she  sees  that 
the  place  is  dangerous.^     But  where  a  train  is  drawn 

7  Nagle  V.  Railroad  Co.,  88  Cal.  86.  25  Pac.  1106.  A  drover  on  a 
stock  train,  riding  in  the  caboose  at  night,  was  awaliened  by  a  fellow 
passenger,  and  informed  tliat  the  train  had  reached  his  destination. 
Held,  that  he  was  negligent,  as  matter  of  law,  in  getting  off  the  train 
in  the  darli,  without  ascertaining  whether  the  train  was  in  fact  at 
the  station,  and  that  he  could  not  recover  for  injuries  sustained  in 
falling  fi'om  a  bridge  on  which  the  train  was  standing.  Blevins  v. 
Railroad  Co.,  3  Old.  512,  41  Pac.  92. 

8  Adams'  Adm'r  v.  Raih-oad  Co.,  82  Ky.  603. 

§  147.     1  Delamatyr  v.  Railroad  Co.,  24  Wis.  578.     It  Is  not  con- 
tributory  negligence   for   a   passenger,    incumbered    with    two   small 
valises,  to  alight  from  a  stationary  train  at  a  point  where  it  is  nee- 
(374) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    147 

up  at  a  station  so  that  some  of  the  coaches  are  at  the 
platform,  a  female  passenger  who  in  broad  daylight 
elects  to  jump  from  the  car  steps  to  the  ground,  a  dis- 
tance of  three  feet,  instead  of  passing  through  the 
coach  ahead,  and  alighting  safely  on  the  platform,  is 
guilty  of  negligence,  and  cannot  recover  for  injuries  sus- 
tained in  so  alighting.'  And  a  female  passenger,  who 
jumps  from  a  stationary  car  four  feet  to  the  ground,  aft- 
er she  is  warned  that  it  is  dangerous,  is  guilty  of  con- 
tributory negligence,  and  cannot  recover  for  injuries 
sustained/  So  it  is  evidence  of  negligence  on  the  part 
of  a  female -passenger  to  step  from  the  car  steps  to  a 
movable  bench,  intended  to  assist  passengers  in  alight- 
ing, which  she  sees  is  slippery,  and  far  away,  without  re- 
questing assistance  from  one  of  defendant's  employes, 
who  is  carrying  a  bundle  for  her,  and  without  asking 
him  to  move  the  bench  up  closer;  and  it  is  error  for  the 
court  to  withdraw  these  facts  from  the  jury  as  evi- 
dence of  contributory  negligence.* 

essary  for  him  to  jump  to  avoid  a  ditcli;  the  train  liands  having 
negligently  failed  to  pull  the  train  up  at  the  station  platform.  Texas 
&  P.  Ry.  Co.  V.  McLane  (Tex.  Civ.  App.)  32  S.  W.  776.  Where  a  train 
is  stopped  at  a  station  in  such  a  position  that  the  lowest  car  step  is 
from  21/2  feet  to  3  feet  to  the  ground,  and  no  stool  is  furnishe<l 
to  assist  passengers  to  alight,  a  female  passenger  is  not  guilty  of 
contributory  negligence,  as  matter  of  law,  in  jumping  to  the  ground. 
Brodie  v.  Railway  Co.  (S.  C.)  24  S.  B.  180. 

2  Eckerd  v.  Railway  Co.,  70  Iowa,  353,  30  N.  W.  615;    Quebec  Cent. 
R.  Co.  V.  Lortie,  22  Can.  Sup.  Ct.  336. 

«  Evansville  &  C.  R.  Co.  v.  Duncan,  28  Ind.  441. 

*  McDermott  v.  Railway  Co.,  82  Wis.  246,  52  N.  W.  85. 

(375) 


§  148  CARRIERS  OF  PASSENGERS.  (Ch.  10 

§  148.     BOARDING    OR  ALIGHTING    FROM  STATION- 
ARY STREET  CAR. 

It  is  not  negligence  per  se  for  a  passenger  to  step 
aboard  a  stationary  street  ear,  when  the  platform  is 
unoccupied,  without  taking  hold  of  the  railings  with 
his  hand,  to  guard  against  the  sudden  moTement  of  the 
car,  and  particularly  so  when  the  person  in  charge  of 
the  car  has  been  notified  that  the  passenger  is  in  the 
act  of  entering  it.^  Where  a  car  has  stopped  for  the 
purpose  of  permitting  its  passengers  to  alight,  and  is 
standing  perfectly  still,  it  is  not  negligence,  as  a  mat- 
ter of  law,  for  a  person  to  step  off  it,  without  retaining 
hold  of  supports.^  Neither  is  a  passenger  guilty  of 
negligence  in  failing  to  take  precautions  against  the 
starting  of  the  car  while  in  the  act  of  alighting,  though 
she  did  not  give  the  signal  to  stop,  since  she  has  a  right 
to  assume  that  it  will  not  be  started  until  she  has  got- 
ten off  from  it  entirely.^  Neither  is  a  passenger  char- 
geable with  negligence  because  he  notifies  the  driver 
of  his  desire  to  get  off,  instead  of  the  conductor.*  And 
there  is  no  rule  of  law  that  forces  a  passenger  to  rush 
at  once  for  the  steps  of  the  car  when  it  stops,  or  that 
forbids  him  to  give  precedence  to  a  female  passenger, 

§  148.  1  Ganiard  v.  Railroad  Co.,  50  Hun,  22,  2  N.  Y.  Supp.  470, 
affii-med  in  121  N.  Y.  661,  24  N.  E.  1092. 

2  Martin  v.  Railroad  Co.,  3  App.  Div.  448,  38  N.  Y.  Supp.  220. 

8  Fisk  V.  Railroad  Co.,  2  Alb.  Law  J.  (N.  Y.)  50.  Where  a  public 
vehicle  stops  at  an  ordinary  stopping  place  at  the  request  of  a  pas- 
senger wishing  to  alight,  another  passenger,  who  follows  him,  is  not 
guilty  of  contributory  negligence  in  failing  to  notify  the  driver  of  her 
Intention  to  get  off.     Geirk  v.  Connolly,  13  Vict.  Law  R.  446. 

*  Mulhado  v.  Railroad  Co.,  30  N.  Y.  370. 
(376) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  •  §    148 

or  to  others  more  infirm  than  he/  But,  on  the  other 
hand,  a  passenger  in  an  open  car,  after  having  given 
the  signal  to  stop,  and  after  it  has  slackened  its  speedy 
is  not  chargeable  with  negligence,  as  matter  of  law,  in 
putting  herself  near  the  edge,  so  as  to  be  ready  to  step 
off  as  soon  as  the  car  stops.®  A  resident  of  a  munic- 
ipality is  bound  to  take  notice  of  an  ordinance  which 
prohibits  street  cars  from  stopping  on  street  crossings, 
and  which  requires  cars  to  be  stopped  on  the  further 
side  of  the  street  in  the  direction  they  are  moving. 
This  is  an  everA'day  incident  of  street-car  travel/ 

6  Britton  v.  Railway  Co.,  90  Mich.  159,  51  N.  W.  276. 

6  Demann  v.  Railroad  Co.,  10  Misc.  Rep.  191,  30  N.  Y.  Snpp.  926: 
Canying  a  plank  on  the  shoulder,  measuring  six  feet  in  length,  on  a 
principal  thoroughfare,  is  not  wrongful,  but  the  person  cari-ying  it 
should  be  more  than  ordinai-ily  careful;  and  he  is  guilty  of  negli- 
gence in  turning  towards  a  car,  which  he  is  about  to  board,  with  the 
plank  at  right  angles  to  it,  and  projecting  beyond  his  shoulder,  over 
a  parallel  track,  just  as  a  car  is  approaching  on  that  track,  which 
strikes  the  plank,  and  injures  him.  Byrd  v.  Railroad  Co.,  43  La. 
Ann.  822,  9  South.  565.  A  passenger  canying  a  child  on  her  left  arm- 
attempted  to  leave  a  street  car.  She  tried  to  get  hold  of  the  dasher 
with  her  right  hand,  but  could  not  do  so,  because  another  passenger 
was  leaning  against  it.  Her  foot  slipped  on  the  step  by  reason  of  ice 
thereon,  and  she  fell,  and  was  injured.  Held,  that  the  question  of 
her  contributory  negligence  in  attempting  to  alight  in  the  manner 
she  did  was  for  the  jui-y,  though  she  knew  of  the  ice  on  the  car  step, 
and  though,  had  she  carried  the  child  on  her  right  arm.  she  could 
have  held  onto  the  handle  with  her  left  hand.  Neslie  v.  Railway  Co., 
113  Pa.  St.  300,  6  Atl.  72.  It  is  not  contributory  negligence  for  a  pa.s- 
senger  about  to  leave  a  car  to  place  his  hand  on  the  brake  wheel; 
and  he  is  not  thereby  precluded  from  recovering  for  the  breaking  of 
his  arm,  caused  by  the  sudden  and  rapid  revolution  of  the  wheel  from 

•7  Jackson  v.  Railway  Co.,  118  Mo.  199,  24  S.  W.  192;    North  Bir- 
mingham St.  Ry.  Co.  V.  Calderwood,  89  Ala.  247,  7  Soutli.  300. 

(■•:T7) 


^  149  .   CARRIERS  OF  PASSENGERS.  (Ch.  10 

§  149.     BOARDING    OR    ALIGHTING    PROM    MOVING 

TRAIN. 

It  is  the  general  rule  of  law,  established  by  the  clear 
weight  of  authority,  that  the  boarding  or  alighting 
from  a  moving  train  is  presumably  and  generally  a 
negligent  act  per  se;  and,  in  order  to  rebut  this  pre- 
sumption, and  justify  a  recovery  for  an  injury  sus- 
tained in  getting  on  or  off  a  moving  train,  it  must  ap- 
pear that  the  passenger  was,  by  the  act  of  the  car- 
rier, put  to  an  election  of  alternative  danger,  or  that 
something  was  done  or  said,  or  that  some  direction  was 
given,  to  the  passenger  by  those  in  charge  of  the  train, 
or  some  situation  created,  which  interfered,  to  some 
extent,  with  his  free  agency,  and  was  calculated  to  di- 
vert his  attention  from  the  danger,  and  create  a  con- 
fidence that  the  attempt  could  be  made  in  safety/  In 
most  jurisdictions  another  exception  exists  where  the 
circumstances  are  peculiarly  favorable  for  such  an  at- 
tempt, as  where  the  train  is  barely  in  motion,  or  mov- 
ing very  slowly,  opposite  a  platform,  and  the  passen- 

an  application  of  tlie  air  brakes.     Cleveland,  C,  C.  &  St.  L.  R.  Co.  v. 
McHenry,  47  111.  App.  301. 

§  149.  1  Solomon  v.  Railway  Co.,  103  N.  Y,  487,  9  N.  E.  4.30;  Victor 
V.  Railroad  Co.,  164  Pa.  St.  19.5,  30  Atl.  381;  .Johnson  v.  Railroad,  70 
Pa.  St.  357;  Pennsylvania  R.  Co.  v.  Lyons,  129  Pa.  St.  113,  18  Atl. 
759;  McDonald  v.  Railroad,  87  Me.  466,  32  Atl.  1010;  Men-itt  v.  Rail- 
road Co.,  162  Mass.  326,  38  N.  E.  447;  Harvey  v.  Railroad  Co.,  116 
Mass.  269.  The  act  of  getting  on  or  off  a  moving  train  is  evidence 
of  contributory  negligence,  and  imposes  on  one  who  is  injured  in  so 
doing  the  burden  of  proving  that  the  peculiar  circumstances  of  the 
case  justified  him  in  such  course.  Browne  v.  Railroad  Co.,  108  N. 
C.  34,  12  S.  E.  958. 
(378) 


QY^^    10)  CONTRIBUTORY   NEGLIGENCE.  §    150 

ger  is  physically  active,  and  his  freedom  of  motion  is 
unimpeded.^  In  all  these  exceptional  cases  the  ques- 
tion of  contributory  negligence  is  one  of  fact  for  the 
jury. 

§  150.     SAME— BOARDING  MOVING  TRAIN. 

In  New  York,  a  distinction  has  been  made  in  some  of 
the  cases  between  the  act  of  boarding  and  the  act  of 
alighting  from  a  moving  train.  It  is  said  that  there  is 
generally  less  excuse  in  boarding  a  moving  train  than 
in  alighting  from  one.  The  party  attempting  it  is  not 
often  under  the  same  stress  of  circumstances  as  fre- 
quently happens  in  the  latter  case.  He  may  be  com- 
pelled to  wait  for  another  train,  but  this  is  an  incon- 
venience merely,  which  does  not  justify  exposing  him- 
self to  hazard.^  It  has  accordingly  been  held  by  the 
court  of  appeals  of  New  York  that  a  passenger  who  at- 
tempts to  board  a  slowly  moving  train,  while  in  such 
proximity  to  a  known  and  prominent  obstruction  as 

2  Butler  V.  Railroad  Co.,  59  Minn.  135,  60  N.  W.  1090.  In  Texas,  it 
Is  not  negligence  per  se  for  a  passenger  at  a  station  to  get  on  or  off 
a  train  after  it  has  started,  but  the  question  is  for  the  juiy.  Hous- 
ton &  T.  C.  R.  Co.  V.  Stewart  (Tex.  Civ.  App.)  37  S.  W.  770.  See,  also, 
post,  §§  150-i;>4. 

§  150.  1  Solomon  v.  Railway  Co.,  103  N.  Y.  437,  9  N.  E.  430.  In 
this  case  a  passenger  attempted  to  board  an  elevated  train  after  the 
signal  to  start  had  been  given,  and  the  train  was  slowly  moving. 
He  placed  his  feet  on  the  car  platform,  and  took  hold  of  the  stan- 
chions of  the  car  with  both  hands,  when  the  conductor  closed  tlie  gate. 
He  was  carried  along  a  few  feet,  when  he  was  stnick  by  a  water  pipe 
near  the  ti-ack.  Trains  ran  every  five  minutes.  Hold,  that  Uaere 
could  be  no  recovery.    Id.,  affirming  Card  v.  Railway  Co..  103  N.  Y. 

€70,  9  N.  E.  433. 

(370) 


§  150  CARRIERS  OF  PASSENGERS.   ^         (^Ch.  10 

would  render  the  consequences  of  a  misstep  possibly, 
if  not  certainly,  serious,  is  guilty  of  contributory  neg- 
ligence, as  matter  of  law,  though  the  train  was  mov- 
ing only  one  or  two  miles  per  hour,  and  though  he  was 
invited  to  get  on  by  the  conductor.^  "If  impatient 
travelers  will  persist  in  making  leaps  at  flying  trains, 
and  knowingly  taking  the  chances  of  frightful  hurt,  or 
death  itself,  in  one  of  its  most  horrible  forms, — that  of 
being  ground  into  quivering  pieces  under  the  wheels 
of  a  rushing  train, — and  such  disaster  befalls,  they 
must  understand  that  the  consequences  of  their  mad- 
ness must  be  visited  on  their  own  heads."  * 

2  Hunter  v.  Railroad  Co.,  126  N.  Y.  18,  26  N.  E.  958;  Id.,  112  N. 
y.  37,  19  N.  E.  820.  See,  also,  Myers  v.  Railroad  Co.,  88  Hun,  G19, 
34  N.  Y.  Supp.  807;  Id.,  82  Hun,.  36,  31  N.  Y.  Supp.  153;  Fahr  v. 
Railway  Co.,  9  Misc.  Rep,  57,  29  N,  Y.  Supp.  1;  Phillips  v.  Railroad 
Co.,  49  N.  Y.  177,  reversing  57  Barb.  644. 

3McMurti'y  v.  Railroad  Co.,  67  Miss.  001,  7  South.  401.  In  this 
case  it  was  held  that  an  old  man,  65  years  of  age,  benumbed  with 
cold,  and  incumbered  by  a  valise  in  his  right  hand,  was  guilty  of 
contributory  negligence,  as  matter  of  law,  in  attempting  to  board  a 
train  on  a  dark  night,  in  the  midst  of  rapidly  falling  snow,  as  it  was 
moving  out  of  a  flag  station,  where  there  were  no  accommodations 
for  passengers,  and  where  it  had  either  not  stopped  at  all,  or  failed 
to  stop  long  enough  to  permit  him  to  get  on.  A  passenger  who  at- 
tempts to  board  a  moving  train,  which  has  stopped  a  sufficient  length 
of  time  to  enable  all  to  get  on  board,  and  who  is  struck  by  an  ob- 
struction near  the  track.  Is  guilty  of  contributory  negligence,  as  mat- 
ter of  law.  McLaren  v.  Railway  Co.,  100  Ala.  506,  14  South.  405; 
Chicago  &  N.  W.  Ry.  Co.  v.  Scates,  90  111.  586;  Harper  v.  Railway 
Co.,  32  N.  J.  Law,  88.  A  passenger  who,  in  an  attempt  to  board  a 
moving  train,  catches  his  foot  in  a  hole  in  the  station  platform,  and 
falls  under  the  car,  and  is  killed,  is  guilty  of  contributory  negligence, 
as  matter  of  law,  and  there  can  be  no  recovery  for  his  death.  Bacon 
V.  Railroad  Co.,  143  Pa.  St,  14,  21  Atl.  1002.  Attempt  to  board 
moving  train  held  negligence  per  se  in  Knight  v.  Railroad  Co.,  2C  La, 
(380) 


Cll.    10)  CONTRIBUTORY  NEGLIGENCE.  §    150 

In  some  jurisdictions,  however,  it  cannot  be  affirmed, 
as  a  universal  proposition  of  law,  that  it  is  negligence 
per  se  for  a  person  to  attempt  to  board  a  moving  train. 
The  age  and  physical  condition  of  the  person  making 
the  attempt,  the  rate  of  speed  of  the  train,  the  nature 
of  the  car  and  of  the  place,  and  all  the  attendant  facts 
and  circumstances,  enter  into  the  question;  and,  while 
any  one  of  these  facts  might  possibly  be  sullicient  to 
justify  the  conclusion  of  negligence  as  matter  of  law, 
ordinarily  it  is  a  question  of  fact  for  the  jury;  the  test 
being  whether  a  person  of  ordinary  care  and  prudence 
would,  uuder  the  circumstances,  have  made  the  at- 
tempt/ So,  if  a  reasonable  time  has  not  been  given  a 
passenger  to  board  the  train,  and  its  motion  is  so  slight 
that  no  danger  is  apparent,  his  attempt  to  get  on  board 
is  not  negligence  as  matter  of  law,  but  the  question  is 
for  the  jury,'     So  the  New  York  court  of  appeals  has 

Ann.  462;  Denver,  S.  P.  &  P.  E.  Co.  v.  Pickard,  8  Colo.  163,  6  Pac. 
149;  Hays  v.  Railway  Co.,  .51  Mo.  App.  438;  Mi.*:souri  Pac.  R.  Co.  v. 
Texas  &  P.  R.  Co..  36  Fed.  879;  Missouri  Pac.  Ry.  Co.  v.  Texas  & 
P.  Ry.  Co.,  34  Fed.  92;  Harkey  v.  Railroad  Co.,  11  Fed.  Cas.  522. 
Failure  of  a  railroad  company  to  stop  its  train  for  five  minutes  at  a 
station,  as  required  by  statute,  will  not  justify  one  in  boarding  the 
train,  if  such  act,  under  the  circumstances,  was  negligence  contribut- 
ing to  the  injury.  Galveston,  H.  &  S.  A.  R.  Co.  v.  I.e  Giei-se,  51  Tex. 
189.  It  is  contributoiy  negligence,  as  matter  of  law,  for  a  young 
man  to  attempt  to  jump  on  a  train  moving  at  least  six  or  seven  miles 
per  hour,  where  the  jump  is  made  in  opposition  to,  and  not  with,  tlie 
direction  In  which  the  train  is  moving;  and  it  is  inuuaterial  that  the 
conductor  told  him  to  jump  on.  Heaton  v.  Railroad  Co.,  65  Mo.  App. 
479. 

4  North  Birmingham  Ry.  Co.  v.  Liddicoat,  99  Ala.  54.''..  13  .'^outh.  IS; 
Baltimore  &  O.  R.  Co.  v.  Kane,  GO"  Md.  11,  13  All.  387;  Swigort  v. 
Railroad  Co.,  75  Mo.  475. 

6  Johnson  v.  Railroad  Co.,  70  Pa.  St.  357;    Brooks  v.  Railroad  Co., 

(381) 


I  150  CARRIERS  OP  PASSENGERS.  (Ch.  10 

recently  held  that  one  who,  at  the  conductor's  bidding, 
attempts  to  board  a  train  moving  from  two  to  three 
miles  per  hour,  past  an  unobstructed  station  platform, 
at  a  station  where  trains  do  not  stop,  is  not  negligent 
per  se.* 

21  Wkly.  Dig.  (N.  Y.)  4G4.  It  is  not,  as  matter  of  law,  contributory 
negligence  for  a  passenger  to  attempt  to  board  a  car  after  a  signal 
to  start  the  train  has  been  given,  wliere  the  train  is  at  rest  when  the 
signal  is  given.  He  may  not  know  that  the  signal  has  been  given, 
or,  if  he  does  know  it,  there  may  be  reason  to  think  that  he  can  get 
on  before  the  train  actually  starts.  Dawson  v.  Railroad,  156  Mass. 
127,  30  N.  E.  4GG.  In  Texas  the  question  whether  an  attempt  to 
board  a  train  in  motion  is  contributory  negligence  is  a  matter  of  fact, 
to  be  determined  by  the  jury.  Texas  &  P.  Ry.  Co.  v.  Murphy,  46 
Tex.  356.  It  is  for  the  jury  to  ascertain  whether,  under  all  the  facts, 
the  effort  was  made  to  board  the  train  when  an  ordinarily  prudent 
man  would  not  have  attempted  it.  It  is  for  the  jury  to  determine 
whether  the  danger  of  boarding  the  train  when  in  motion  is  so  ap- 
parent as  to  make  it  the  duty  of  one  desiring  to  board  it  to  refrain 
from  the  attempt.  Kansas  &  G.  S.  L.  Ry.  Co.  v.  Dorough,  72  Tex. 
108,  10  S.  W.  711. 

6  Distler  v.  Railroad  Co..  151  N.  T.  424.  45  N.  E.  937,  reversing  78 
Hun,  252,  28  N.  Y.  Supp.  8G5.  Commenting  on  the  Hunter  Case,  112 
N.  Y.  371,  19  N.  E.  820;  Id.,  126  N.  Y.  18.  26  N.  E.  958,— the  court 
said:  "It  may  be  said  of  the  decisions  in  that  case  that  in  the  first 
it  was  held  that  it  was  negligence  per  se  to  board  a  train  moving  from 
four  to  six,  or  six  to  eight,  miles  per  hour,  on  account  of  its  com- 
paratively rapid  motion;  and,  in  the  second,  as  the  danger  was  mani- 
fest, unusual,  and  peculiar,  and  must  have  been  understood,  that, 
although  moving  at  a  less  rate  of  speed,  it  was  negligence,  as  matter 
of  law,  to  attempt  to  board  it  while  in  close  proximity  to  a  prominent 
object,  so  situated  that  in  case  of  failure,  or  of  a  misstep  or  other 
slight  misadventure,  the  risk  of  being  thrown  against  the  obstruction 
and  injured  would  be  imminent" 
(382) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    ]  51 


§   151.     SAME— ALIGHTING  FROM  MOVING  TRAIN. 

All  courts  are  united  on  tlie  proposition  that  it  is 
neuliueuce,  as  matter  of  law,  for  a  passeu<>er  to  vol- 
nntarily  jump  from  a  rapidly  moving  train. ^  "If  there 
be  any  man  who  does  not  know  that  such  leaps  ai'e  ex- 
tremely dangerous,  especially  when  taken  in  the  dark, 
his  friends  should  see  that  he  does  not  travel  by  rail- 
road." ^  So,  also,  to  jump  from  a  moving  train  in  the 
dark  is  generally  held  to  be  negligence  as  matter  of 
law.^  The  earlier  cases  seem  to  go  still  further,  and 
to  hold  that  in  all  cases  a  passenger  who  leaves  a  mov- 
ing train  is  guilty  of  negligence,  as  matter  of  law,  no 

§  151.  1  MeLarin  v.  Railroad  Co.,  85  Ga.  504,  11  S.  E.  810;  Coleman 
V.  Railroad  Co.,  84  Ga.  1.  10  S.  E.  498;  Dixon  v.  Railroad  Co.,  80  Ga. 
212,  5  S.  E.  49G;  Jarrett  v.  Railroad  Co.,  83  Ga.  347,  9  S.  E.  681;  At- 
lanta &  ^Y.  P.  R.  Co.  V.  Dlckerson,  89  Ga.  455,  15  S.  E.  534;  Barnett 
V.  Railway  Co.,  87  Ga.  766,  13  S.  E.  904;  Watson  v.  Railway  Co.,  81 
Ga.  476,  7  S.  E.  854;  Ohio  &  M.  Ry.  Co.  v.  Stratton,  78  111.  88; 
Houston  &  T.  C.  Ry.  Co.  v.  Leslie,  57  Tex.  83;  [Missouri,  K.  &  T.  Ry. 
Co.  V.  PeiTy,  8  Tex.  Civ.  App.  78,  27  S.  W.  496;  Victor  v.  Railroad, 
1G4  Pa.  St.  195,  30  Atl.  381.  A  passenger  who  alights  from  a  train 
moving  so  rapidly  that  she  thinks  she  cannot  alight  in  safety  is 
guilty  of  contributory  negligence,  as  matter  of  law.  Williams  v.  Rail- 
way Co.  (Tex.  Civ.  App.)  36  S.  W.  329. 

2  Railroad  Co.  v.  Aspell,  23  Pa.  St.  147. 

8  Richmond  &  D.  R.  Co.  v.  Moms,  31  Grat.  (Va.)  200;  Jacob  v. 
Railroad  Co.,  105  Mich.  450,  03  N.  W.  502;  Railway  Co.  v.  Mayes.  58 
Ark.  397,  24  S.  W.  1076;  East  Tennes.<;ee,  V.  &  G.  Ry.  Co.  v.  Holmes, 
97  Ala.  332,  12  South.  286.  But  the  rule  is  different  if  the  passenger 
does  not  know  that  tlie  train  is  moving.  In  such  a  case  the  question 
Is  whether  the  passenger  ought  to  have  known  that  tlie  train  wa-s  in 
motion,  and  it  is  error  to  direct  a  verdict  for  defendant  on  the  theory 
that  it  is  negligence  for  a  passenger  to  alight  from  a  moving  Li'ain. 
Brooks  v.  Railroad,  135  Mass.  21. 

(3s:i) 


§  151  CARRIERS  OF  PASSENGERS.  (Ch.  10 

matter  how  slowly  the  train  may  be  moving.*  But  the 
o-eneral  rule  now  is  that  courts  will  not,  as  matter  of 
law,  declare  a  person  guilty  of  contributory  negligence 
who  attempts  to  leave  a  train  while  it  is  moving  slow- 
ly, especially  at  a  platform.  The  question  as  to  wheth- 
■er  the  act  constitutes  negligence  depends  upon  wheth- 
er the  danger  was  so  obvious  that  a  prudent  person 
would  not,  under  the  circumstances,  have  made  the  at- 
tempt, and  is  to  be  determined  by  the  jury  upon  a  con- 
sideration of  the  rate  of  speed  acquired  by  the  train, 
the  place,  the  conduct  of  those  in  charge  of  the  train, 
and  all  the  circumstances  connected  with  the  act  of 
alighting.^     Thus  it  has  been  held  not  negligence  per 

*  Damont  v.  Railroad  Co.,  9  La.  Ann.  441;  Blodgett  v.  Bartlett,  50 
Ga.  353;  Secor  v.  Railroad  Co.,  10  Fed.  15;  Lucas  v.  Railroad  Co., 
6  Gray  (Mass.)  64;  Gavett  v.  Railroad  Co.,  16  Gray  (Mass.)  501.  In 
a  recent  Massachusetts  case  it  laas  been  held  to  be  contributory  neg- 
ligence, as  matter  of  law,  for  a  passenger  to  alight  in  a  dark  place 
from  a  moving  train,  under  the  belief  that  It  has  stopped,  when  the 
circumstances  do  not  amount  to  an  invitation  to  alight,  or  an  assur- 
ance that  it  is  safe  to  do  so.  England  v.  Railroad  Co.,  153  Mass.  490. 
27  N.  E.  1.  So  it  has  been  held  that,  where  a  train  stops  a  sufficient 
length  of  time  to  give  passengers  a  reasonable  opportunity  to  alight, 
a  passenger  is  guilty  of  contributory  negligence,  as  matter  of  law,  in 
waiting  until  the  train  starts,  and  in  jumping  off  while  it  is  in  mo- 
tion. McClintock  v.  Raikoad  Co.,  21  Wkly.  Notes  Cas.  (Pa.)  133; 
Pennsylvania  R.  Co.  v.  Lyons,  129  Pa.  St.  113;  Illinois  Cent.  R.  Co. 
V.  Slatton,  54  111.  133;  Central  Railroad  &  Banking  Co.  v.  Miles,  88 
Ala.  256,  6  South.  696.  The  true  basis  for  these  decisions  would 
seem  to  be  the  absence  of  negligence  on  the  carrier's  part. 

5  Little  Rock  &  Ft.  S.  Ry.  Co.  v,  Atkins,  46  Ark.  425;  St.  Louis,  I. 
M.  &  S.  Ry.  V.  Person,  49  Ark.  182,  4  S.  V>\  755;  Little  Rock  &  Ft. 
S.  Ry.  Co.  V.  Tankersley,  54  Ark.  25,  14  S.  W^  1009;  Carr  v.  Railroad 
Co.,  98  Cal.  366,  33  Pac.  213;  Covington  v.  Railroad  Co.,  81  Ga.  273. 
6  S.  E.  593;  Chicago  &  A.  R.  Co.  v.  Byrum,  153  111.  131,  38  N.  E.  578; 
Illinois  Cent.  R.  Co.  v.  Able,  59  111.  131;  Pennsylvania  Co.  v.  Marion, 
(384) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    151 

se  to  leave  a  train  moving  three  miles  per  hour/'  or 
even  five  miles  per  hour/     But  when  the  rate  of  speed 

123  Ind.  415,  23  X.  E.  973;  Louisville  &  N.  E.  Co.  v.  Crunk,  119  Ind. 
542,  21  N.  E.  31 :  .Teffersouville,  M.  &  I.  R.  Co.  v.  Hendricks,  41  Ind. 
48;  Louisville.  E.  &  St.  L.  C.  R.  Co.  v.  Bean.  9  Ind.  App.  240,  30  X. 
E.  443;  Nichols  v.  Railroad  Co..  68  Iowa,  732,  28  N.  W.  44;  Rabeu 
V.  Railroad  Co.,  74  Iowa.  732,  34  N.  W.  G21;  Atchison,  T.  &  S.  F. 
R.  Co.  V.  Huglies,  55  Kan.  491,  40  Pac.  919;  Cumberland  Val.  R.  Co. 
v.  Maugans,  61  Md.  53;  McCaslin  v.  Railway  Co.,  93  Mich.  553,  53 
K.  W.  724;  Strand  v.  Railway  Co.,  64  Mich.  216.  31  N.  W.  184; 
Georgia  Pac.  Ry.  Co.  v.  West,  66  Miss.  310,  6  South.  207;  Schaefor 
V.  Railway  Co.,  128  Mo.  64,  30  S.  W.  331;  Fulks  v.  Railway  Co.,  Ill 
Mo.  335,  19  S.  W.  818;  Leslie  v.  Railroad  Co.,  88  Mo.  50;  AValler  v. 
Railroad  Co.,  83  Mo.  608;  Clotworthy  v.  Railroad  Co.,  80  Mo.  220; 
Sti-aus  V.  Railroad  Co.,  75  Mo.  185;  Price  v.  Railroad  Co..  72  Mo.  414; 
Kelly  V.  Railroad  Co.,  70  Mo.  604;  Doss  v.  Railroad  Co..  59  Mo.  27; 
Taylor  v.  Railway  Co.,  26  Mo.  App.  336;  Jackson  v.  Railway  Co., 
29  Mo.  App.  495;  Richmond  v.  Railway  Co.,  49  Mo.  App.  104;  Nance 
V.  Railroad  Co.,  94  N.  C.  019;  Thomas  v.  Railroad  Co.,  38  S.  C.  485. 
17  S.  E.  226:  Louisville  &  N.  R.  Co.  v.  Stacker,  86  Tenn,  343,  6  S.  W. 
737;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Smith,  59  Tex.  406;  Kelly  v. 
Railroad  Co.,  70  Wis.  335,  35  N.  W.  538;  .Tones  v.  Railroad  Co.,  4 
Api».  D.  C.  158,  athrming  21  D.  C.  346;  lOdgar  v.  Railway  Co., 
11  Out.  App.  4.52.  "If  the  train  stops,  and  does  not  remain  a  reason- 
able time,  and  a  passenger,  to  avoid  being  carried  beyond  his  destina- 
tion, gets  off  a  slowly  starting  train,  and  he  is  thus  injured,  he  is 
not  guilty  of  contributory  negligence.  If,  however,  the  train  only 
slows  up,  and  does  not  stop,  and  is  moving  with  accelerating  speed, 
and  a  pa.ssenger  had  knowledge,  or  by  reasonable  observation  might 
have  obtained  knowledge,  of  such  increasing  movement,  and  lie 
jumped  off  and  is  Injured,  he  Is  guilty  of  contributory  negligence, 
and  cannot  recover."  McSloop  v.  Railroad  Co..  59  Fed.  431.  In 
Texas,  it  is  generally  held  that  the  attempt  to  leave  a  moving  train 
is  not  negligence  per  se,  and  the  jury  must  determine  whether  the  at- 
tempt and  method  of  its  execution  constitute  contributory  negligence. 
International  &  G.  N.  R.  Co.  v.  Satterwhite  (Tex.  Civ.  App.)  38  S.  W. 


6  Suber  v.  Railway  Co.,  96  Ga.  42.  23  S.  E.  387. 

T  New  York,  P.  &  N.  R.  Co.  v.  Coulbouru,  09  Md.  360,  16  All.  208. 

V.  1  FET.CAU.PAS. 25  (3b0) 


§  151  CARRIERS  OF  PASSENGERS.  (Ch.  10 

is  six  miles  per  hour,  or  more,  the  courts  generally  hold 
it  to  be  negligence  per  se  to  jump  therefrom.' 

401.     And  this  nile  obtains  even  tlion.sli  the  conductor  tells  the  pas- 
senger that  the  train  will  stop  at  the  station.     Missouri,  K.  &  T.  Ry. 
Co.  V.  Meyers  (Tex.  Civ.  App.)  35  S.  W.  421.     A  passenger  about  70 
years  old,  and  large  and  coiimlent,  arose  from  his  seat  in  the  smok- 
ing car  as  soon  as  the  train  stopped  at  his  destination,  made  his  way 
to  the  door  as  speedily  as  possible,  but  when  he  reached  the  door 
he  was  delayed  by  a  group  of  incoming  passengers.     He  pushed  his 
way  through  them;    and,  when  he  reached  the  last,  or  next  to  the 
last,  step  leading  down   from   the  platform,   he  discovered   that  the 
train  had  commenced  to  move.     The  impetus  which  he  had  acquired 
rendered  it  difficult  for  him  to  stop  himself,  and  he  was  thrown  to 
the  ground.     Held,   that  the  question  of  his  contributory  negligence 
in  attempting  to  leave  a  moving  car  was  for  the  jury.     Pennsylvania 
R.  Co.  V.  Peters,  116  Pa.  St.  200,  9  Atl.  317.     A  passenger  started  to 
leave  a  train  as  soon  as  it  stojiped.     The  stop  was  momentary,— less 
than  a  minute.— but  she  did  not  know  that  the  train  had  started  till 
she  reached  the  car  platform,  and  had  descended  one  of  the  car  steps. 
She  then  souglit  to  return  to  the  train,  but  became  dizzy  in  attempt- 
ing to  turn  around,  and  fell  backward  from  the  car.     Held,  that  she 
was'  not  guilty  of  contributory  negligence,  as  matter  of  law.     Mahar 
V.  Railroad  Co.,  .5  App.  Div.  22,  39  N.  Y.  Supp.  03.     A  passenger  who 
is  in  the  act  of  stepping  from  the  lower  car  step  to  the  station  plat- 
form when  the  train  starts  may  step  ofC  if  he  believes  he  can  do  so 
with  reasonable  safety,  without  being  guilty  of  negligence,  as  mat- 
ter of  law.     Sanderson  v.  Railway  Co.,  64  Mo.  App.  655.     Where  the 
testimony  is  conflicting  as  to  wliether  the  train  was  in  motion  when 
plaintiff  started  to  descend  from  tlie  car.  the  question  of  plaintiff's 
contributory  negligence  is  for  the  jury.     Enches  v.  Railroad  Co.,  135 
Pa.  St.  194,  19  Atl.  939. 

8  Six  miles:  Reibel  v.  Railroad  Co..  114  Ind.  476.  17  N.  E.  107; 
Lake  Shore  &  M.  S.  Ry.  Co.  v.  Bangs.  47  Mich.  470,  11  N.  W.  276; 
Dewald  v.  Railroad  Co.,  44  Kan.  586,  24  Pac.  1101;  Central  Railroad 
&  Banking  Co.  v.  Letcher.  69  Ala.  106.  Six  to  ten  miles:  Scully  v. 
Railroad  Co.,  80  Huu,  197,  30  N.  Y.  Supp.  61.  Ten  or  twelve  miles: 
Jeffersouville  R.  Co.  v.  Swift,  26  Ind.  459.  Eighteen  miles:  Brown 
V.  Railroad  Co.,  80  Wis.  162,  49  N.  W.  807.  "If  to  get  on  or  off  a 
train  running  at  the  rate  of  four  miles  an  hour  is  not  negligence  per 
(380) 


Ch.    10)  CONTRIBUTORY   NEGLIGENXE.  §    152 


§  152.     SAME— AGGRAVATING  CIRCUMSTANCES. 

Aggravating  circumstances  may  exist  which  impel 
courts  to  declare  an  attempt  to  get  on  or  off  a  moving 
train  negligence  per  se,  though  in  the  absence  of  such 
circumstances  the  question  might  be  one  of  fact  for 
the  jury.  Thus  the  attempt  of  a  passenger  incum- 
bered with  bundles  to  leave  a  moving  train  is  generally 
held  to  be  negligence  per  se.^  So  it  is  contributory 
negligence,  as  matter  of  law,  for  a  passenger  carrying 
a  12  year  old  girl  in  one  arm  to  attempt  to  leave  a  train 
which  was  in  motion  before  he  got  out  of  the  car,  and 

se.  would  such  an  act  be  so  regarded  \f  the  train  was  running  at 
twice  that  rate  of  speed?  In  our  opinion,  it  would  be,  and  this  opin- 
ion is  based  on  our  linowledge  and  experience  in  such  mattei*s.  While 
we  are  satisfied  with  this  conclusion,  yet  we  must  confess  it  lias  the 
appearance  of  being  somewhat  arbitrary.  But  the  limit  must  be 
placed  somewhere."     Murphy  v.  Railway  Co.,  43  Mo.  App.  342. 

§  1.52.  1  Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  Wingate,  14;i  lud.  125.  42 
N.  E.  477,  affirming  37  N.  E.  274;  Pennsylvania  Co.  v.  Hixon,  10  Ind. 
App.  520,  38  N.  E.  56;  Burrows  v.  Railway  Co.,  63  N.  Y.  556,  re- 
versing 3  Thomp.  &  C.  (N.  Y.)  44;  South  &  N.  A.  R.  Co.  v.  Schaufler, 
75  Ala.  136.  A  drover  accompanying  stock,  who,  in  the  niglittime. 
with  one  hand  filled  with  a  lantern  and  a  prod  pole,  attempts  to 
climb  on  a  freight  car,  when  its  speed  is  so  great  and  increasing  as 
to  induce  a  belief  in  his  mind  that  it  will  be  unsafe  for  him  to  get 
onto  the  caboose  when  it  reaches  him,  is  guilty  of  contributory  negli- 
gence, as  matter  of  law.  McCorlvle  v.  Railway  Co.,  61  Iowa,  555, 
16  N.  W.  714.  A  drover,  who.  with  a  valise  in  his  hands,  attempts 
to  climb  the  ladder  of  a  moving  freight  car,  is  guilty  of  contributory 
negligence,  as  matter  of  law.  Richmond  &  D.  R.  Co.  v.  I'iclilesimer, 
89  Va.  389,  16  S.  E.  245;  Id.,  85  Va.  798,  10  S.  E.  44.  It  is  negli- 
gence, as  matter  of  law,  for  a  person,  both  of  whose  arms  are  full 
of  bundles,  to  attempt  to  board  a  train  moving  from  four  to  seveu 
miles  i)('r  liour.  Birmingham  Electric  Co.  v.  Clay,  108  Ala.  233,  19 
South,  309. 

(387) 


^  152  CARRIERS  OF  PASSENGERS.  (Ch.  10 

had  passed  tlio  station  platform  when  he  made  the  at- 
tempt.'    So,  also,  a  passenger  who  persists  in  an  at- 
tempt to  alight  from  a  moving  train,  after  he  has  been 
warned  by  the  condnctor  or  other  train  hands  not  to 
do  so,  is  guilty  of  contributory  negligence,  as  matter 
of  law.^     So,  where  a  female  passenger  makes  the  at- 
tempt in  face  of  a  warning  from  a  fellow  passenger  that 
the  train  is  in  motion.     Though  she  is  not  bound  to 
yield  obedience  to  the  warning,  she  disregards  it  at 
her  peril,  and  takes  the  risk  of  exposing  herself  unnec- 
essarily to  known  danger.*     And  a  passenger  who  at- 
tempts to  alight  from  a  moving  train,  after  two  other 
passengers  who  had  preceded  him  were  thrown  down 
in  the  attempt,  is  guilty  of  contributory  negligence,  as 
matter  of  law.'     It  is  contributory  negligence,  as  mat- 
ter of  law,  for  a  passenger  to  jump  in  the  nighttime 
from  the  side  door  of  the  baggage  compartment  of  a 
smoking  car,  while  the  train  is  moving  slowly,  even 
though  the  rear  door  of  the  car  was  locked,  where  the 
front  door  was  open.^ 

2  :Morrison  v.  Railway  Co.,  56  N.  Y.  302. 

3  Ohio  &  M.  R.  Co.  V,  Schiebe,  44  111.  4W;  Nelson  v.  Railroad  Co., 
68  :vrn.  .593;    Jewell  v.  Railway  Co.,  54  Wis*.  010.  12  N.  W.  83. 

4Kili)atrick  v.  Railroad  Co.,  140  Pa.  St.  502,  21  Atl.  408. 

6  Brown  v.  Barnes,  151  Ta.  St.  562,  25  Atl.  144.  It  is  negligence  for 
a  passenger  to  attempt  to  alight  at  a  point  not  a  regular  stopping 
place  while  the  train  is  in  motion.  Louisville,  N.  A.  &  C.  Ry.  Co.  v. 
Johnson,  44  111.  App.  56. 

<  Geogagn  v.  Railroad  Co.,  10  App.  Div.  454,  42  N.  Y.  Supp.  205. 

(388) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    153 

^  153.     SAME— MITIGATING  CIRCUMSTANCES. 

Fright  and  dismay  caused  at  the  prospect  of  being 
carried  beyond  his  destination  does  not  excuse  the  act 
of  a  passenger  in  jumping  from  a  rapidly  moving 
train/  In  a  recent  case,-  the  supreme  court  of  Louisi- 
ana says:  "We  consider  the  law  to  be  settled  by  the 
oyerwhelming  weight  of  authority  that,  while  a  rail- 
road company  is  bound  to  stop  its  train  at  a  station  to 
which  it  has  contracted  to  carry  a  passenger,  and  to 
land  him  safely  and  conyeniently,  the  fact  that  the 
train  is  about  to  pass  such  a  station  without  stopping 
does  not  justify  the  passenger  in  jumping  off  the  mov- 
ing train,  unless  expressly  or  impliedly  invited  to  do 
so  by  the  company."  Even  the  anxiety  of  the  passen- 
ger to  see  his  sick  child  does  not  relieve  him  from  the 
legal  consequences  of  his  reckless  conduct  in  jumping 
from  a  rapidly  moving  train. ^  So  the  negligence  of  a 
railroad  company  which  leads  a  passenger  to  get  upon 
a  wrong  train  is  no  excuse  for  his  jumping  from  the 
train  while  it  is  moving  at  a  rapid  rate.* 

§  153.     1  Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  Wingate.  143  Ind.  125, 
42  X.  E.  477;    Dougherty  v.  Railroad  Co.,  86  111.  467;    Illinois  Cent. 
R.  Co.  V.  Chambers.  71  111.  r.l<);    Illinois  Cent.  R.  Co.  v.  Lutz,  84  111.. 
59.S. 

2  Walker  v.  Railroad  Co.,  41  La.  Ann.  795,  6  South.  916. 

3  Kurgin  v.  Railway  Co.,  115  N.  C.  673,  20  S.  E.  473. 

*  Rf)th.stein  v.  Railroad  Co.,  171  Pa.  St.  620,  33  Atl.  379;  Whelan 
V.  Railroad  Co..  84  Ga.  506,  10  S:  E.  1091.  A  passenger  who  is  in- 
formed by  the  ticket  agent  at  the  station  tliat  the  train  is  an  hour 
late  lias  no  riglit  to  infer  from  such  statenicnt  that  the  tniin  will  be 
an  liour  behind  its  .scliedulcd  time  wlien  it  rcadn's  tlie  station;  and 
if  he  leaves  the  station,  and  returns  just  as  the  train  is  about  to  pull 


§  153  CARRIERS  OF  PASSENGERS.  (Ch.  10 

But  where  the  danger  is  not  imminent,  and  where 
persons  of  ordinary  care  and  caution  would  make  the 
attempt,  it  is  not  necessarily  negligence  for  a  passen- 
ger to  attempt  to  leave  a  train  which  has  not  stopped 
at  his  destination."  So,  where  a  railroad  train  starts 
while  a  female  passenger,  accompanied  by  her  chil- 
dren, is  engaged  in  getting  off  the  train,  she  is  not 
guilty  of  contributory  negligence,  as  matter  of  law,  in 
jumping  from  the  car  steps  to  the  platform,  where  one 
of  her  children  has  fallen  prostrate.'  And  where  wo- 
men waiting  for  a  train  in  a  passenger  station  are  in- 
vited by  the  station  agent  to  take  seats  in  an  empty 
car  while  the  waiting  room  is  being  cleansed,  it  is  a 
question  of  fact  for  the  jury  whether  it  is  uegligeuce 
to  jump  from  the  car  when  the  train  to  which  it  is  at- 
tached begins  to  move,  without  signal  or  notice  of  any 
kind,  startling  the  women,  and  alai'ming  them  lest 
they  might  be  carried  away  from  their  intended  desti- 
nation.^ 

out,  such  statement  furnishes  no  excuse  for  his  boarding  It  while  in 
motion.  Ohio  &  M.  R.  Co.  v.  Allender,  59  111.  App.  620.  The  mere 
fact  that  a  conductor  agrees  to  stop  the  train  for  a  passenger  at  a 
station  where  it  does  not  usually  stop,  and  that  the  bell  is  rung  as  it 
approaches  the  station,  does  not  authorize  the  passenger  to  assume 
that  the  ti-ain  has  stopped  after  it  passed  the  platfoiTo,  when  in  fact 
it  was  in  motion,  and  had  been  seen  by  the  passenger  to  be  in  motion 
a  few  seconds  before,  as  it  passed  the  platform;  and  the  passenger 
cannot  recover  for  injuries  sustained  in  jumping  from  the  moving 
train,  though  he  believed  it  to  have  stopped  when  he  made  the  jump. 
East  Tennessee,  V.  &  G.  R.  Co.  v.  Massengill,  1.5  Lea  (Tenn.)  328. 
6  Cousins  V.  Railway  Co.,  96  Mich.  386,  56  N.  W.  14. 

6  Pennsylvania  R.  Co.  v.   Kilgore,  32  Pa.   St.  292;    Loyd  v.   Rail- 
way Co.,  53  Mo.  509. 

7  Shannon  v.  Railroad  Co.,  78  Me.  52,  2  Atl.  678. 

(390) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    154 

§  154.     SAME— ADVICE     OR     COMMAND     OF     TRAIN 

HANDS. 

The  mere  fact  that  a  passeiiiier  acts  on  the  advice  or 
comiiiaud  of  the  conductor  does  not  iiistifv  him  in  at- 
temi)ting-  to  alight  from  a  train  when  it  is  obviously 
dangerous  to  do  so;  and  the  fault  of  the  conductor  in 
this  respect  will  not  relieve  the  passenger  from  the 
consequences  of  his  own  reckless  acts.  But  if  the  train 
is  moving  very  slowly,  and  the  passenger,  upon  the 
suggestion  or  request  of  those  in  charge  of  the  train, 
attempts  to  alight,  and  is  injured,  it  is  a  proper  ques- 
tion for  the  jury  whether  it  was  a  prudent  or  ordinarily 
careful  act,  or  whether  it  was  a  rash  and  reckless  ex- 
jjosure  to  peril  and  hazard.^  The  passenger  has  a 
right  to  expect  that  the  carrier  has  employed  a  skillful 
and  j)rudent  conductor,  who  will  not  expose  passen- 
gers to  dangerous  risks,  and  who  has  experience  and 
knowledge  in  his  business  sufficient  to  correctly  advise 

§  154.  1  Atchison,  T.  &  S.  F.  R.  Co.  v.  Hughes,  55  Kan.  491,  40 
Pac.  !)19;  St.  Louis,  I.  M.  &  S.  K.  Co.  v.  Cantrell,  37  Arlc.  .^>l!t; 
East  Tennessee,  V.  &  G.  Ry.  Co.  v.  Hu-iios.  92  Ga.  388.  IT  S.  E. 
949;  Jones  v.  Railway  Co.,  42  Mhm.  183.  4:',  X.  W.  1114;  Filoi-  v. 
RaiU-oad  Co.,  49  N.  Y.  47,  59  N.  Y.  351,  08  X.  Y.  124;  Bucher  v.  Rail- 
road Co.,  98  N.  Y.  128;  Lewis  v.  Canal  Co..  145  X.  Y.  ,508,  40  X.  E. 
248,  affirming  80  Hun,  192,  30  N.  Y.  Siipi).  28;  Watkins  v.  Railio.-id 
Co.,  IIG  N.  C.  901,  21  S.  E.  409;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v. 
Krouse,  30  Ohio  St.  222;  DehiAA'are  &  H.  Canal  Co.  v.  Welistor 
(Pa.  Sup.)  6  Atl.  841;  Gulf.  C.  &  S.  F.  Ry.  Co.  v.  RroAvn,  4  Tex.  Civ. 
Api».  435,  23  S.  W.  018;  Te.xas  ^:  1>.  Ry.  Co.  v.  Ha- will.  3  'ICx.  Civ. 
Api).  250,  22  S.  AV.  829;  Texas  A:  X.  O.  Ry.  Co.  v.  Bingliani,  2  Tex. 
Civ.  App.  278,  21  S.  W.  509;  Eddy  v.  Wallace,  1  C.  C.  .\.  I.;5.  t;> 
Fed.  801;  Thoinsuu  v.  Commissioner  of  Railways,  2  Sup.  <Ji.  .\.  S. 
Wales,  292. 

(31)1) 


§  154  CARRIERS  OF  PASSENGERS.  (Ch.  10 

and  direct  passengers  as  to  the  proper  time  aud  man- 
ner of  alighting  safely  from  the  train."  So  it  is  not 
negligence  for  a  female  passenger  to  alight  from  a 
moving  train  at  a  station,  if  she  is  told  to  do  so  by  the 
condnctor,  who  assists  her,  against  her  remonstrance 
that  she  cannot  get  off.'  Neither  is  a  passenger  gnilty 
of  negligence,  as  matter  of  law,  in  attempting,  at  a  sta- 
tion, to  board  a  slowly  moving  train,  which  has  slacked 
its  speed  to  two  miles  an  hour  in  response  to  his  signal, 
where  the  conductor  directs  him  to  get  on  the  cai's,  by 
calling  to  him  "All  aboard!"  * 

2  Lambeth  v.  Railroad  Co.,  66  N.  C.  404. 

3  Jones  V.  Railway  Co.,  47  La.  Ann.  383,  16  South.  937.  A  female 
passenger,  who  has  had  no  suthcient  opportimity  to  alight,  and  who 
is  about  to  be  carried  away  from  a  three  months  old  babe,  is  not, 
as  matter  of  law,  guilty  of  contributory  negligence  in  getting  off  the 
moving  train,  in  obedience  to  a  direction  by  a  brakeman  to  "jump 
quick,"  before  the  train  got  faster.  Ft.  Worth  &  D.  C.  Ry.  Co.  v. 
Viney  (Tex.  Civ.  App.)  30  S.  W.  252.  One  who  is  injured  in  jumping 
fi'om  a  moving  raih'oad  train,  pursuant  to  an  order  or  direction  of  the 
conductor,  who  is  ejecting  him,  cannot  be  charged  witii  contributory 
negligence.  International  &  G.  N.  Ry.  Co.  v.  Hassell,  62  Tex.  2.56. 
A  13  year  old  boy  is  not  chargeable  'with  contributory  negligence  in 
jumping  fi"om  a  moving  train,  where  he  was  compelled  to  do  so  by 
the  throwing  of  water  in  his  face  by  one  of  the  company's  employes, 
Clark  V.  Railroad  Co.,  40  Hun,  605. 

4  Montgomery  &  E.  R.  Co.  v.  Stewart,  91  Ala.  421,  8  South.  708. 
"The  danger  of  the  attempt  to  board  not  being  obvious,  the  law  is 
well,  and  has  been  long,  settled  that  the  plaintiff  was  in  no  wise  neg- 
ligent, or  lacking  in  due  care,  to  rely  upon  the  assurance  thus  im- 
pliedly given  by  the  employe  that  it  was  safe  to  make  the  attempt 
to  board,  in  compliance  with  the  conductor's  direction."  Id.  See, 
also,  Curry  v.  Railway  Co.,  17  Ont.  65.  It  is  a  question  for  the  jury 
whether  a  shipper  of  stock  is  guilty  of  negligence  in  attempting  to 
climb  the  ladder  of  a  freight  car,  where  the  train  has  begun  to  move 
unexpectedly,  and  he  is  urged  to  make  the  attempt  by  the  conductor. 

(392) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    154 

But  no  advice  or  commancl  of  the  conductor  will  jus- 
tify a  passenger  in  jumping  from  a  train  moA'ing  at  full 
speed.  As  well  might  he  obey  the  conductor's  sugges- 
tion to  put  himself  on  the  track  before  the  advancing 
wheels  of  the  locomotive.'* 

So,  Avhile  a  passenger  may  be  justified  in  obeying  the 
directions  of  a  railroad  employ^  to  get  off  a  moving*^ 
train,  he  has  no  riiiht  to  obev  such  direction  given  bv 
one  having  no  connection  with  the  train  other  than  as 
passenger.  When  the  conductor  or  a  brakeman  di- 
rects a  passenger  to  get  off  the  train,  although  in  mo- 
tion, the  passenger  will  naturally  assume  that  he 
knows  it  to  be  entirely  safe,  or  he  would  not  have  given 
the  direction.  But  as  to  a  fellow  passenger,  there  is 
no  reason  to  suppose  that  he  knows  anything  more 
about  whether  it  is  safe  to  follow  his  direction  than  the 
one  to  whom  it  is  given.** 

Sometimes,  of  course,  it  is  quite  important  to  deter- 

Missourl  Pac.  Ey.  Co.  v.  Tietken  (Neb.)  6S  N.  W.  330.  The  act  of  a 
15  year  old  boy  in  attempting  to  get  on  a  moving  engine  Is  not  ex- 
cised by  the  fact  tliat  the  engineer  waved  his  liand,  and  that  a' 
switchman  told  the  boy  that  he  tliouglit  the  engineer  wanted  to  spealc 
with  him.  Connaughtou  v.  Railroad  Co.,  13  Misc.  Rep.  401,  34  N.  Y^ 
Supp.  243. 

5  St,  Louis,  I.  yf.  &:  S.  Ry.  Co.  v.  Rosenbeny,  45  Ark.  2r)6;  Bardwell 
V.  Railroad  Co..  03  Miss.  574;  Rothstcin  v.  Pennsylvania  R.  Co..  171 
Pa.  St.  020,  33  Atl.  379;  Dnrliam  v.  Railroad  Co.  (Ky.)  2i)  S.  W.  7:^7: 
AVhitlock  V.  Comer,  57  Fed.  50.">.  Liability  is  imposed  on  tlie  carrier 
for  only  such  acts  of  the  servant  f»r  cmijloyf^  as  are  within  the  scope 
of  his  employment;  and  the  advice  of  a  porter  or  brakeman  to  a 
pas.senger  that  it  would  not  be  dangerous  to  get  off  a  moving  train 
cannot  be  considered  as  the  discharge  of  a  delegated  duty.  Missouri. 
K.  &  T.  Ry.  Co.  V.  Perry,  S  Tex.  Civ.  Ai»p.  78,  27  S.  W.  40<;. 

c  Filer  v.  Railroad  Co.,  50  N.  Y.  351,  OS  N.  Y.  128. 


§  154  CARRIERS  OF  PASSENGERS.  (Ch.  10 

mine  what  words  by  a  conductor  amount  to  an  advice 
or  command  to  leave  a  moving  train.  Tlie  words 
<'.Tnmp  quick,  if  you  are  going  to,"  addressed  by  a  con- 
ductor to  a  passenger  as  the  train  is  leaving  the  station 
of  his  destination,  are  merely  words  of  advice,  and  do 
not  amount  to  a  positive  direction  to  get  off/  "Jump 
with  the  train,"  or  "Don't  jump  sideways,"  is  not  an 
advice  or  direction  to  leave  the  train,  but  merely  a 
suauestion  of  the  safest  method  of  doing  so  if  the  pas- 
senger  is  resolved  on  making  the  attempt/  A  state- 
ment by  a  conductor  to  a  passenger,  anxious  to  get  off 
as  soon  as  possible,  that  passengers  sometimes  get  off 
at  a  point  50  or  60  feet  from  the  station,  while  the 
train  is  in  motion,  is  not  equivalent  to  a  direction  or 
order  by  the  conductor  to  get  off'  at  that  place/  So  the 
silence  of  the  conductor,  on  hearing  another  passenger 
tell  plaintiff  that  the  car  is  not  going  to  stop,  and  that 
he  had  better  get  off,  will  not  justify  him  in  jumping 
from  the  car/''     But  the  words,  "You  get  off,"  address- 

1  Vimont  v.  Railway  Co.,  71  Iowa,  58,  32  N.  W.  100. 

8  McDonald  v.  Kailroad.  87  Me.  466,  32  Atl.   1010. 

9  Chicago,  B.  &  Q.  R.  Co.  v.  Hazzard.  26  111.  373.  A  statement  by 
a  conductor  to  a  passenger,  who  demurs  to  jumping  from  the  train  a.s 
it  is  passing  the  station  platfonii,  that  he  could  take  the  risk  if  he 
would,  does  not  amount  to  an  order  or  direction  to  jump  from  the 
ti'iiin.      Jeffersonville  R.  Co.  v.  Swift,  26  Ind.  459. 

10  Masterson  v.  Railway  Co.,  88  Ga.  430,  14  S.  E.  591.  An  an- 
nouncement of  the  name  of  a  station,  and  a  statement  "All  out  for" 
such  station,  made  l)y  the  conductor,  does  not  justify  a  passenger  in 
getting  off  the  train,  in  the  dark,  several  hundred  yards  from  the 
station,  and  while  it  is  running  18  or  20  miles  an  hour.  Louisville  & 
N.  R.  Co.  V.  Depp  (Ky.)  33  S.  W.  417.  An  expression  of  opuaion  by 
a  conductor  that  a  passenger  can  leap  from  a  train  in  safety  at  a 
station  at  which  it  does  not  stop  does  not  relieve  the  passenger  of 

(394) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    155 

ed  by  a  brakeman  to  the  escort  of  a  female  passenger 
after  the  car  is  in  motion,  and  while  the  parties  are  on 
the  car  platform,  accomi)anied  by  the  brakeman's  act 
in  shutting  the  vestibule  door  of  the  car  after  the  es- 
cort is  on  the  car  steps,  are  a  positive  order,  and  not 
mere  information,  advice,  or  opinion;  and  the  passen- 
ger is  not,  as  matter  of  law,  guilty  of  contributory  neg- 
ligence in  obeving  it.^^  And  where  the  conductor 
pulls  the  bell  rope  as  a  signal  for  the  engineer  to  stop 
as  the  train  is  leaving  the  station,  and  opens  the  door 
of  a  vestibule  car,  and  informs  a  passenger,  "You  can 
get  off  now,"  the  question  whether  the  passenger  is 
guilty  of  contributory  negligence  in  stepping  from  the 
train  in  the  dark,  under  the  belief  that  it  had  stopi)ed, 
is  for  the  jury,  though  it  was  still  in  motion.^^ 

g  155.     SAME— STATUTORY  PROVISIONS. 

Statutory  prohibitions,  more  or  less  sweeping, 
against  getting  on  or  off  moving  trains,  exist  in  many 
of  the  states.  In  New  Jersey  it  is  provided  that  one 
injured  by  jumping  on  or  oft'  a  car  while  in  motion 
shall  be  deemed  to  have  contributed  to  the  injury  sus- 
tained, and  shall  not  recover  any  damages  therefor.^ 
In  Iowa  it  is  made  a  misdemeanor  for  any  person  to 

the  duty  to  exercise  liis  judgment  whether  or  not  such  a  leap  Is 
safe;  and  if  the  conductor  only  gives  it  as  matter  of  opinion,  still,  if 
the  danger  is  so  apparent  that  a  prudent  man.  similarly  situated, 
would  not  have  attempted  to  leap  from  the  train,  then  tlie  passenger 
was  guilty  of  negligence,  and  should  not  be  pernrttcd  to  recover. 
Chicago  &  A.  R.  Co.  v.  Randolph,  r)3  111.  510. 

11  Galloway  v.  Railway  Co.,  87  Iowa,  458,  54  N.  W.  447. 

12  Evansville  &  T.  H.  R.  Co.  v.  Athon,  6  lud.  App.  205,  33  X.  E.  4C.9. 
§  155.     1  Revision    N.  J.  p.  920,  §  07. 

(:}!)5) 


§  155  CARRIERS  OF  PASSENGERS.  (Ch.  10 

get  on  or  off  a  moving  train,  without  the  consent  of  the 
person  having  the  same  in  charge."  Under  this  stat- 
ute, it  is  contributory  negligence,  as  matter  of  law,  in 
all  cases  for  a  passenger  to  get  off  a  moving  train  with- 
out the  conductor's  consent.  The  law  will  not  afford 
a  party  a  remedy  for  an  injury  sustained  by  him  as  the 
consequence  of  his  own  act,  when  it  has  forbidden  him 
in  advance  to  do  that  act.^  The  conductor's  consent, 
however,  need  not  be  express,  but  it  may  be  inferred 
from  his  conduct.  This  inference  is  for  the  jury  as  one 
of  fact,  and  it  is  error  for  the  court  to  determine  it  as 
one  of  law.*  But,  though  plaintiff  testifies  that  some 
one  told  him  to  jump  oft",  yet  where  he  is  an  experi- 
enced railroad  man,  and  is  unable  to  state  whether  it 
was  the  conductor  who  addressed  him,  and  the  con- 
ductor and  brakeman  each  testify  that  neither  of  them 
told  plaintiff  any  such  thing,  a  verdict  in  plaintiff''s 
favor  cannot  be  sustained.^ 

2  Acts  IGth  Gen.  Assom.  c.  148  (McClain's  Ann.  St.  18S4,  p.  985), 
Laws  N.  Y.  1878,  c.  261,  makes  it  a  mi.stlemeanor  for  any  person  not 
a  railroad  employe  to  get  on  or  off  a  freight  car  or  engine  in  motion. 
In  other  states  it  is  declared  unlawful  for  any  one,  not  a  passenger 
or  an  employe,  to  get  on  or  off  moving  trains.  Rev.  St.  Ind.  1894, 
§  2290:  Gen.  St.  Ky.  1894,  §  805;  2  How.  Ann.  St.  Mich.  §  9122; 
Ann.  Code  Miss.  §  1272. 

3  Raben  v.  Railway  Co.,  74  Iowa,  732,  34  N.  W.  021.  It  makes  no 
difference  that  a  female  passenger,  whose  children  were  already  on 
the  station  platform  when  the  train  started,  was  impelled  to  get  ofE 
by  the  fear  of  being  caiTied  away  from  her  children,  or  that  she  had 
reason  to  believe  that  she  could  do  so  in  safety.  Id.  One  who  is 
injured  while  boarding  a  moving  ti-ain,  in  violation  of  statute,  caunol 
recover.     Young  v.  Railway  Co.  (Iowa)  09  N.  W.  682. 

*  Raben  v.  Railway  Co.,  74  Iowa,  732.  34  N.  W.  021. 
B  Herman  v.  Raihvay  Co.,  79  Iowa,  161,  44  N.  W.  298. 
(39G) 


Ch.   JO)  COXTRIBUTORY  NEGLIGENCE.  §    156 

§  156.     BOARDING  MOVING    STREET  CAR. 

The  strict  rules  laid  down'  in  the  preceding,-  sections, 
as  to  attempts  to  board  or  alight  from  moving  trains 
propelled  b^'  steam,  are  not  applicable  to  attempts  to 
board  or  alight  from  moving  street  cars.  "Ordinarily, 
it  is  perfectly  safe  to  get  upon  a  street  car  moving 
slowly,  and  thousands  of  people  do  it  every  day  with 
perfect  safety.  But  there  may  be  exceptional  cases, 
where  the  car  is  moving  rapidly,  or  where  the  person 
is  infirm  or  clumsy,  or  is  incumbered  with  children, 
packages,  or  other  hindrances,  or  where  there  are  other 
unfavorable  conditions,  where  it  would  be  reckless  to 
do  so;  and  a  court  might,  upon  undisputed  evidence, 
hold  as  matter  of  law  that  there  was  negligence  in  do- 
ing so.  But  in  most  cases  it  must  be  a  question  for  the 
jury."  ^  Numerous  cases  support  the  proi)osition  that 
it  is  not,  as  matteijof  law,  contributory  negligence  for 
a  person  to  board  a  slowly  moving  street  car  which  has 
been  signaled  to  stop.^ 

§  156.     1  Eppendorf  v.  Railroad  Co.,  69  N.  Y.  195. 

2  Id.;  Conner  v.  Railway  Co.,  105  Ind.  62,  4  X.  E.  441;  Sahlj^aard 
V.  Railway  Co.,  48  Minn.  232,  51  N.  W.  Ill;  Valentine  v.  Railroad 
Co.  (Com.  PI.)  4  N.  Y.  Supp.  481;  McSwyny  v.  Railroad  Co.,  54  Hun, 
637,  7  N.  Y.  Supp.  456;  Seitz  v.  Railroad  Co.  (Com.  PI.)  10  X.  Y. 
Supp.  1;  Morri.sou  v.  Railroad  Co.,  130  N.  Y,  166,  29  N,  E.  105,  affirm- 
ing 55  Hun,  608,  8  N.  Y.  Supp.  436;  Thompson  v.  Macklem.  2  U.  C.  Q. 
B.  300;  West  Chicago  St.  R.  Co.  v.  Dudzik,  67  111.  App.  681.  It  is 
not  negligence  per  se  for  a  person  to  get  on  or  off  a  street  car  drawn 
by  horses  while  it  is  in  motion.  It  depends  upon  the  circumstances 
surrounding  each  case,  and  the  question  is  ordiiiaiily  <jiic  of  fact,  to 
be  .submitted  to  the  jury.  Scliucherl  v.  Railway  Co..  42  Minn.  42. 
43  X.  W.  837.     Whether  it  is  uegliguuce  or  not  for  a  person  to  at- 

(3D7) 


§  156  CARRIERS  OF  PASSENGERS.  (Ch.  10 

But  an  attempt  to  board  a  cable  car  running  at  full 
speed  is  negligence.^  And  a  passenger  about  to  board 
a  slowly  moving  street  car  must  observe  whether  there 
are  any  obstacles  outside  the  car  in  plain  sight  which 
make  it  dangerous  for  him  to  get  on  board;  and  there- 
fore a  passenger  who  is  struck  by  a  truck  just  after  he 
has  gotten  on  the  car  steps,  and  before  the  car  has  gone 
eight  feet,  cannot  recover/  So  one  who  attempts  to 
get  on  a  horse  car  while  it  is  in  motion,  after  being  di- 
rected to  wait  until  it  stops,  and  who  persists  in  the  at- 
tempt to  get  on   board,   and   is  injured  by  running 

tempt  to  board  a  moving  street  car  is  generally  a  question  for  the 
juiy,  taking  into  consideration  all  tlie  circumstances  in  evidence  in  the 
case.  Omaha  St.  Ry.  Co.  v.  Martin,  48  Neb.  65,  66  N.  W.  1007. 
Whether  or  not  a  man  68  years  old,  and  weighing  200  pounds,  is 
guilty  of  contributoiy  negligence  in  attempting  to  board  a  horse  car, 
after  he  has  signaled  the  driver,  and  after  the  car  has  slowed  up,  and 
is  moving  about  four  miles  an  hour,  is  a  question  for  the  jury;  nor- 
can  the  court  say,  as  matter  of  law,  that  hfc  attempt  to  board  the 
car  under  these  circumstances  is  negligence,  even  if  no  signal  is 
known  to  have  been  given  to  the  driver,  Briggs  v.  Railway,  148 
Mass.  72,  19  N.  E.  19.  Whether  a  passenger,  in  getting  on  a  horse 
car  while  it  is  in  motion,  is  or  is  not  in  the  exercise  of  due  care,  is 
a  matter  for  the  determination  of  the  jiu-y,  under  all  the  circum- 
stances of  the  case.  North  Chicago  St.  Ry.  Co.  v.  Wihiams,  140  111. 
275,  29  N.  E.  672;  Id.,  20  111.  App.  275.  One  injured  in  an  attempt 
to  board  a  street  car  cannot  recover  if  the  car  was  moving  at  its- 
usual  rate  of  speed,— eight  or  nine  miles  an  hour;  but  he  is  entitled 
to  recover  if  the  car  had  stopped,  or  was  in  the  act  of  stopping,  or 
was  in  such  condition  of  running  or  stopping  as  induced  him  to  think 
it  was  about  to  stop,  Walters  v.  Traction  Co.,  161  Pa.  St  36,  28 
Atl.  941. 

8  Chicago  City  R.  Co.  v.  Delcourt,  33  111.  App.  430. 

4  Moylan  v.  Railroad  Co.,  128  N.  Y.  583,  27  N.  E.  977,  reversing  59' 
Hun.  619,  13  N.  Y.  Supp.  4^. 
(398) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    156 

against  the  arm  of  a  passenger,  put  np  to  prevent  her 
from  taking  hold  of  the  car,  is  guilty  of  negligence/ 

No  distinction  exists  between  the  rules  applicable  to 
street  cars  drawn  by  horses  and  street  cars  propelled 
by  electricity.  It  is  true  that  electric  cars  are  gener- 
ally run  at  a  higher  rate  of  speed  than  hoi'se  cars. 
But  electric  cars  are  designed  for  the  transportation 
of  passengers  along  the  public  streets,  and  are  as  easilj^ 
controlled  as  horse  cars.  No  rear.on,  therefore,  exists 
for  applj'ing  to  electric  cai'S  rules  of  law  not  applicable 
to  horse  cars.® 

B  Gallagher  v.  Railway  Co.,  156  Mass.  157,  30  N.  E.  480.  A  passen- 
ger who  attempts  to  get  on  board  a  moving  street  ear,  especially  if 
the  conductor  is  inside,  must  be  held  to  a  reasonable  degree  of  care. 
Picard  v.  Railway  Co.,  147  Pa.  St.  195,  23  Atl.  566.  The  boarding 
of  an  elevated  railway  train  by  a  passenger  as  the  gate  is  closing, 
and  persisting,  against  an  effort  to  remove  him,  in  the  precarious 
position  thus  obtained,  is  such  contributory  negligence  as  bars  re- 
coveiy  for  his  death  in  consequence  of  that  position.  Robinson  v. 
Railway  Co.,  5  Misc.  Rep.  209,  25  N.  Y.  Supp.  91. 

c  Corlin  v.  Railway,  154  :\Iass.  197,  27  X.  E.  lOOO;  Schepers  v.  Rail- 
way Co.,  126  Mo.  665,  29  S.  W.  712.  "As  to  the  question  of  contribu- 
tory negligence  in  boarding  or  leaving  a  moving  street  car,  no  distinc- 
tion exists  because  of  a  difference  in  the  motive  power,  as  electricity 
and  hoi'se  power.  No  authoi'ity  is  cited  to  sustain  the  distinction,  nor 
are  we  able  to  see  any  gi-ound  for  any  material  difference  in  the  rules 
of  law  to  be  applied,  since  tlie  objects  and  general  methods  and  pur- 
poses of  street  railways  remain  the  same,  whatever  the  motive 
power."  Citizens'  St.  R.  Co.  v.  S])ahr,  7  Ind.  App.  23,  33  N.  E.  446. 
"Electricity  as  a  motive  power,  while  stronger  and  more  powerful, 
and  witli  possibihties  of  a  greater  speed,  is  at  the  same  time  more 
nearly  iindci'  control  of  the  person  in  charge,  tlian  liorsc  juiwcr. 
The  strict  rule  in  force  regarding  the  negligence  of  a  person  aliglitiug 
or  boarding  an  oi-dlnaiy  train  of  steam  cai'S  had  for  it  many  good 
and  sufhcient  reasons,  which  are  not  applical)le  to  tlie  eli'ctric  car, 
as  in  general  use.     In  the  latter  case,  stops  are  frequent,  and  opitor- 


§    157  CARRIERS   OF   PASSENGERS.  (Ch.    10 


§  157.     SAME— ALIGHTING    FROM    MOVING    STREET 

CAR. 

It  is  not  contributory  negligence,  as  matter  of  law, 
for  a  passenger  to  attempt  to  leave  a  slowly  moving 
street  car.^      The  court  cannot  say,  as  matter  of  law, 

tiinity  for  great  speed  is  not  presented.  Steps  for  passengers  are  near 
the  ground,  and  the  chances  of  a  misstep  or  fall  are  not  so  great  as 
in  steam  cars,  as  constructed.  Streets  on  such  lines  are  generally 
paved,  and  in  that  respect  passengers  may  as  safely  depart  or  board 
such  cars  in  one  place  as  in  another,  whereas,  in  the  case  of  steam 
cars,  platforms  are  generally  provided.  While  in  electric  cars  the 
possibilities  of  speed  are  greater  than  in  the  case  of  horse  cars,  yet 
the  general  operation  and  management  of  such  ears  so  nearly  ap- 
l)roaches  to  that  of  horse  cars  that  it  must  be  held  that  the  same 
rule  of  law  which  holds  that  it  is  not  negligence  per  se  to  board  or 
depart  from  such  cars  while  in  motion  is  also  applicable  to  electric 
cars."  Cicero  &  P.  St.  Ry.  Co.  v.  Meixner,  160  111.  320,  43  N.  E.  823. 
But  in  Denver  Tramway  Co.  v.  Reid  (Colo.  Sup.)  4.5  Pjic.  378,  it  was 
said:  "In  the  last  few  years  horses  have  been  ahuost  entirely  displaced 
as  a  motive  power  on  sti'eet-car  lines  in  cities  by  cables  and  electricity, 
and  the  operation  of  cars  and  trains  correspondingly  accelerated.  As 
transit  becomes  more  rapid,  the  dangers  incident  to  street-i'ailway 
traffic  are  correspondingly  augmented,  and  as  the  danger  is  increased, 
the  law  exacts  greater  care  on  the  part  of  both  the  carrier  and  the  pas- 
senger. For  this  reason  many  of  the  decisions  applicable  to  passengers 
on  horse  cars  are  inapplicable  to  the  newer  modes  of  transportation. 
The  cable  and  electric  service  of  to-day  more  nearly  resembles  the 
ordinaiy  railway  train,  and  the  case  law  which  has  grown  up  with 
reference  to  the  latter  is  more  in  point." 

§  157.  1  Chicago  City  Ry.  Co.  v.  Mumford,  07  111.  .560;  Munroe  v. 
Railroad  Co.,  .50  N.  Y.  Super.  Ct  114:  Mettlestadt  v.  Railroad  Co.,  4 
Rob.  (N.  y.)  377;  Brown  v.  Railway  Co.  (Wash.)  47  Pac.  SDO.  A  pas- 
senger who  has  signaled  an  electric  motor  to  stop,  and  who  steps  on 
the  running  board  after  the  car  has  slowed  down,  is  not  guilty  of  neg- 
ligence, as  matter  of  law,  in  letting  go  his  hold  of  an  upright  sup- 
port on  the  car,  preparatory  to  alightmg.  and  he  is  not  thereby  de- 
ban-ed  from  recovering  for  injuries  sustained  by  a  sudden  and  vio- 
(400) 


Ch.    10)  CONTRIBUTORY  XEGLIGEXCE.  §    157 

that  to  alight  from  a  street  car  in  motion,  at  however 
small  a  rate  of  speed,  is  contributory  nep;ligence,  but 
the  question  is  one  of  fact  for  the  jury.^  But  it  is  neg- 
ligence, as  matter  of  law,  for  a  passenger  to  jump  from 
a  car  going  at  full  speed.''  So  a  passenger  on  an  elec- 
tric street  car,  who  either  steps  off  the  car  wliile  it  is 

lent  forward  jerk  of  the  car.  in  response  to  a  signal  by  the  conductor 
to  .CO  ahead.     Walters  v.  Raih-oad  Co.,  95  Ga.  ol9.  20  S.  E.  497. 

2  Rathbone  v.  Raih-oad  Co.,  13  R.  I.  709;  Ober  v.  RaHroad  Co.,  44 
La.  Ann.  10.j9,  11  South.  '818;  Duncan  v.  Railway  Co.,  48  Mo.  App. 
659.  W^hether  alighting  from  a  moving  street  car,  operated  by  an 
endless  cable,  is  nealigence,  is  a  fact  to  be  detennined  by  the  jurj-, 
taking  into  consideration  all  the  circumstances  in  evidence  in  the  case. 
Omaha  St.  Ry.  Co.  v.  Craig,  o9  Neb.  UOl,  58  N.  W.  209.  A  pas.senger 
who  discovers  that  she  is  on  a  wrong  street  car  as  .soon  as  she  gets 
on.  and  who  so  informs  the  conductor,  and  starts  to  get  off  while 
the  car  is  standing,  and  has  gotten  her  foot  on  the  rimning  board  of 
the  car  when  it  starts,  is  not,  as  matter  of  law,  guilty  of  negligence 
in  continuing  her  descent  from  the  ear  after  it  has  started.  Lacas 
T.  Railway  Co.,  92  Mich.  412,  52  N.  W.  745.  A  female  passenger  is 
not  guilty  of  contributoiy  negligence,  as  matter  of  law,  in  jumping 
from  a  sti-eet  car  as  it  is  being  driven  into  the  car  barn,  regardles.s  of 
her  signal  to  stop,  where  ou  a  former  occasion  Indecent  proposals 
were  made  to  her  in  the  barn.  Ashton  v.  Railway  Co.,  78  ;Mich.  587, 
44  N.  W.  141.  An  elevated  train  on  which  plaintiff  was  a  passenger 
did  not  go  to  his  destination,  and  passengers  were  required  to  change 
cai-s.  Plaintiff  was  ignorant  of  this  fact,  and  the  car  started  before 
he  got  off.  The  guard  opened  the  gate,  and  told  him  to  jump,  and 
plaintiff  did  so  before  the  train  had  passed  the  station  platform. 
Held,  that  his  contributory  negligence  was  for  the  jury,  and  not  the 
court.  Geiler  v.  Railway  Co.,  11  Misc.  Rep.  413,  32  N.  Y.  Supp.  254. 
It  has  even  been  held  not  negligence  per  se  for  a  17  year  old  boy  to 
jump  from  a  horse  car  in  rapid  motion.  Wyatt  v.  Railroad  Co.,  55 
Mo.  485,  02  Mo.  408.  But  it  is  questionable  wliethcr  this  case  would 
be  followed  now. 

sMasterson  v.  Railroad  Co.,  88  Ga.  430,  14  S,  E.  591;  Denver  T. 
Co.  V.  Owins,  20  Colo.  KJT,  30  Pac.  848. 

V.  1  FKT.CAR.PAb. — 2(>  (401) 


§  157  CARRIERS  OF  PASSENGERS.  (Ch.  10 

rimiiing  from  7  to  12  miles  an  hour,  or  else  is  on  tlie  car 
step,  in  the  act  of  getting  off,  and  is  jerked  off  by  the 
motion  of  the  car,  is  guilty  of  contributory  negligence 
as  matter  of  law.*  It  has  even  been  held  to  be  con- 
tributory negligence,  as  matter  of  law,  for  a  passenger 
to  alight  from  an  electric  car  running  four  or  five  miles 
ptr  hour/  So  a  passenger  who,  without  notice  to  any 
one,  rings  the  bell,  and  without  the  knowledge  of  the 
driver  or  conductor  proceeds  to  get  off,  acts  at  her 
peril,  and  cannot  recover  for  injuries  sustained  b}'  the 
sudden  starting  of  the  car  while  she  is  alighting.^ 

4  Saiko  V.  Railway  Co.  (Minn.)  69  N.  W.  473. 

6  Jagger  v.  Railway  Co.  (Fa.  Sup.)  3G  Atl.  8G7. 

6  Nichols  V.  Ra-ilroad  Co.,  106  Mass.  46.3.  The  failure  of  the  con- 
diictor  to  immediately  stop  a  street  car  when  requested  by  a  passen- 
ger does  not  excuse  the  contributoiy  negligence  of  the  passenger  in 
jumping  from  the  i-apidly  moving  car.  Hagan  v.  Railway  Co.,  15 
Phila.  278.  An  electric  raih\ay  company  is  not  bound  by  its  em- 
ployes' practice  in  slacking  the  speed  of  a  car  to  enable  a  particular 
passenger  to  alight,  while  the  car  is  in  motion,  at  a  point  where  no 
stop  is  ordinarily  made.  Jagger  v.  Railway  Co.  (Pa.  Sup.)  36  Atl.  867. 
A  female  passenger  on  a  train  of  street  cars  pulled  by  a  dummy 
steam  engine  is  guilty  of  contributory  negligence  in  attempting  to 
get  off  the  car  wliile  in  motion,  in  violation  of  the  rules  of  the  com- 
pany, and  without  any  act  on  the  part  of  the  train  hands  to  cause 
her  to  take  the  step.  Galderwood  v.  Railway  Co.,  96  Ala.  318,  11 
South.  66;  North  Birmingluim  St.  Ry.  Co.  v.  Calderwood,  89  Ala.  247. 
7  South.  360.  A  passenger  on  a  street  ear,  who  delays  in  attempting 
to  alight  at  the  terminus  of  the  line  until  he  sees  the  horses  passing 
along  the  side  of  the  car,  foi'  the  puiiiose  of  being  attached  to  the 
other  end,  so  as  to  proceed  on  the  return  ti'ip,  is  guilty  of  negligence 
in  persisting  in  the  attempt  after  the  car  is  in  motion.  Dickson  v. 
Railroad  Co.,  33  N.  Y.  Super.  Ot.  330.  Though  a  street-car  driver 
has  failed  to  stop  when  requested  by  a  passenger,  yet  the  latter  can- 
not recover  for  injuries  sustained  in  alighting  from  the  car  in  motion 
by  reason  of  a  sudden  jerk,  where  he  did  not  again  notify  the  driver 
(402) 


Cli.    10)  CONTRIBUTORY   NEGLIGENCE.  §    loS 

g  158.     SAME— FRONT    PLATFORM. 

There  is  no  rule  of  law  that  boardinc:  the  front  plat- 
form of  a  street  car  when  in  motion  is  nejilijit'nce.^ 
The  fact  that  the  attemjjt  is  made  at  the  front  platform 
is  undoubtedly  a  circumstance  to  be  considered  in  con- 
nection with  the  fact  that  the  car  was  at  the  time  in 
motion,  jet  neither  one  of  these  circumstances,  nor 
both  of  them  together,  can,  as  matter  of  law,  be  held 
to  constitute  negligence.^  But  one  who  attempts  to 
board  the  front  platform  of  a  moving  trolley  car  is 
bound  to  exercise  the  care  of  a  reasonably  prudent 
person,  and  more  care  is  necessary  than  if  he  had  wait- 

of  his  intention  to  aliglit,  and  it  does  not  appear  that  tlie  latter  Icnew 
of  tliis  fact  when  he  started  up  his  horses.     Outen  v.  ItnnnpMd  Co.,. 
94:  Ga.  662,  21  S.  E.  710.     Where  the  issue  is  whether  a  passenger 
was  thrown  from  the  car  by  its  sudden  starting  Avliile  attemi)ting  to 
alight,  or  whether  .she  attempted  to  step  from  it  wliilc  In  motion,  an 
instruction  is  proper  that  plaintiff  cannot  recover  if  she  failed  to  ex- 
ercise ordinary  care  on  her  part,  as  by  leaving  the  car  when  in  mo- 
tion.    Centi-al  Ry.  Co.  v.  Smith,  74  :\Id.  212.  21  Atl.  7(X;.     Where  a 
street  car  is  being  slowed  down  in  response  to  a  passenger's  signal 
and  he  undertalces  to  get  off  before  the  car  has  stopped,  the  company 
is  not  liable  for  injuries  sustained  by  reason  thereof,  since  it  is  guilty 
of  no  negligence.     Saffer  v.  Railroad  Co.,  53  Hun,  621),  5  N.  Y.  Supp. 
700. 

§  l.")8.  1  McDonough  v.  Knilroad  Co.,  137  Mass.  210.  To  attempt 
to  board  a  moving  cable  car  by  tlie  front  platfonu  is  not  neg.igcnce 
per  se,  where  the  car  has  slackened  speed  in  response  to  plaintiff's 
signal.     Finkeldey  v.  Cable  Co.,  114  Cal.  l-'S.  4.".  Par.  !>!»(;. 

2  Stager  v.  Itnilway  Co.,  119  Pa.  7().  VJ.  Ail.  S21.  Where  a  13  year 
old  boy  riding  on  the  front  platfonu  states  that  lie  is  going  to  get 
off,  and  the  driver  .slackens  speed,  the  question  wliether  he  is  guiUy 
of  contributory  negligence  in  getting  off  before  the  car  has  come  to 
a  full  stop  is  for  the  jury.     Crissey  v.  Railway  Co.,  75  I'a.  S.">. 

(403) 


I  158  CARRIERS  OF  PASSENGERS.  (Ch.  10 

ed  to  board  the  rear  step,  or  for  the  car  to  stop.'  An 
attempt  to  board  the  front  platform  of  an  electric- 
street  car,  moving  at  its  ordinary  rate  of  speed  of  seven 
or  eight  miles  an  hour,  is  negligence  per  se.*  And 
so  is  the  attempt  to  alight  from  the  front  platform  of  a 
horse  car  moving  at  full  speed,  though  the  passenger 
is  directed  to  get  off  by  the  driver.  =^  So  it  is  negli- 
gence per  se  for  a  15  year  old  boy  to  attempt  to  board 
a  moving  street  car  at  the  front  platform,  where  the 
step  is  entirely  off,  though  he  made  the  attempt  at  the 
invitation  of  the  driver.^ 

8  Paulson  V.  Railroad  Co..  34  N.  Y.  Snpp.  244.  13  Misc.  Rep.  387. 

4  Woo  Dan  v.  Power  Co.,  5  Wash.  466,  32  Pac,  103. 

6  Ginnon  v.  Railroad  Co.  (1864)  3  Rob.  (N.  Y.)  25.  An  11  year  old 
boy,  who  is  a  passenger  on  a  street  car.  is  guilty  of  contributory  neg- 
ligence, as  matter  of  law,  in  jumping  off  the  front  platform,  with  his 
back  to  the  horses,  and  without  asking  the  driver  to  stop.  Purtell  v. 
Railway  Co.,  3  Pa.  Co.  Ct.  R.  273. 

«  Dietrich  v.  Railway  Co.,  58  Md.  347.  The  negligent  or  willful  re- 
fusal of  a  conductor  of  a  horse  car  to  stop  it  when  requested  by  a 
passenger,  a  Child  six  years  old,  does  not,  of  itself,  justify  the  child 
in  getting  off  the  front  platform  of  the  car  while  in  motion.  Cram  v 
Railroad  Co.,  112  ;\Iass.  38.  Act  Mo.  March  3,  1869  (page  207,  §  4). 
relating  to  street  railroads  in  St.  Louis,  provides  that  passengers  shah 
not  be  permitted  to  get  on  or  off  any  car.  while  in  motion,  by  the 
front  platform,  and  each  car  shall  be  furnished  with  such  adjustable 
gate  or  guard  as  shall  effectually  prevent  it.  This  act  was  passed 
to  secure  safety  to  life  and  limb,  and  should  not  be  narrowly  con- 
strued. Hence  the  fact  that  a  boy  passenger  gets  oft'  the  front  plat- 
form, while  the  car  is  in  motion,  is  no  defense  to  an  action  for  inju- 
ries thereby  sustained,  if  the  car  is  not  furnished  with  a  gate  which 
prevents  him  from  so  doing.  Muehlhauseu  v.  Railroad  Co.,  91  Mo. 
332,  2  S.  W.  315. 
(404) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    160 

§  159.     SAME— PASSENGER    INCUMBERED    WITH 

PACKAGES. 

It  is  contributory  negligence,  as  matter  of  law,  for  a 
person  to  attempt  to  board  a  moving  street  car,  where 
one  of  his  hands  and  arms  is  incumbered  with  his  coat 
and  dinner  bucket,  leaving  only  one  of  his  hands  free, 
and  rendering  him  unable  to  hang  onto  the  car.^  So 
to  step  from  the  platform  of  a  moving  street  car,  with 
a  heavy  keg  in  one's  hand,  is  contributory  negligence 
as  matter  of  law."  But  it  is  not  per  se  negligence  for 
a  person  with  an  umbrella  in  one  hand,  and  a  handker- 
chief in  the  other,  to  attempt  to  board  an  electric 
street  car  while  it  is  in  the  act  of  stopping,  and  before 
it  has  come  to  a  full  stop.  Such  attempt  may  or  may 
not  be  negligence,  according  to  the  circumstances.* 

§  160.     PASSENGERS  ON  VESSELS. 

The  duty  a  ferry  company  owes  to  passengers,  going 
on  and  off  its  boats,  is  simply  to  conduct  its  business 
with  such  caie  and  skill  as  will  make  the  entrance  upon 
its  boat  safe  for  persons  of  ordinary  prudence;  and  if  a 
passenger  is  injured  because  of  failure  to  exercise  such 

§  159.     1  Roddington  v.  Traction  Co.,  132  Pa.  154,  19  Atl.  28. 

2  Ricketts  v.  Railroad  Co.,  85  Ala.  600,  5  South.  353.  A  man  45 
yoars  old.  and  weighing  200  pounds,  who  attemi)ts  to  board  a  strw^t 
car  moving  6  miles  per  hour,  or  more,  with  a  bottle  in  his  right  hand 
and  a  baslcet  on  his  left  arm,  is  guilty  of  (•ontril)Utor.v  negligence,  as 
matter  of  law.  Baltimore  Traction  Co.  v.  State,  78  Md.  40t»,  28  AtL 
397. 

8  White  V.  Ilailroad  Co.,  92  Ga.  494,  17  S.  E.  G72. 

(405) 


§  160  CARRIERS  OF  PASSENGERS.  (Ch.  10 

priidence,  the  company  is  not  liable.^  Thus  one  who, 
in  passing  from  a  ferryboat  to  a  dock,  puts  himself  in 
so  dense  a  crowd  that  he  cannot  see  his  footing,  and  in 
that  situation  gets  his  foot  crowded  between  the  boat 
and  the  dock,  is  guilty  of  contributory  negligence,  as 
matter  of  law.-  So  a  passenger  has  no  right  to  pre- 
sume that  a  ferryboat  has  arrived  at  its  dock  because 

§  160.  1  Race  v.  Ferry  Co.,  138  N.  Y.  644,  34  N.  E.  280,  reversing 
(City  Ct.  Broolc.)  19  N.  Y.  Siipp.  675.     See.  also.  ante.  §  65. 

2  Dwyer  v.  Railway  Co.,  47  N.  J.  Law,  9.  In  tliis  ease  Beasley,  C. 
J.,  said:  "The  point  of  junction  of  the  ferryboat  and  its  docli  must, 
of  necessity,  be  a  point  of  danger.  It  is  idle  to  liken  the  transit  over 
sucli  a  place  to  the  passing  along  an  ordinary  thoroughfare,  for,  un- 
der ordinary  conditions,  the  latter  is  a  place  of  safety,  while  the 
former  must,  of  necessity,  be  liable  to  be  pei-ilous,  for  its  safeness  is 
altogether  dependen^t  on  the  exercise  of  incessant  caution  on  the  part 
of  human  agents,  which,  while  man  remains  the  imperfect  creature 
that  he  is,  cannot  be  entirely  trustworthy.  I  can,  looking  at  the  rea- 
son of  things,  see  no  difference  between  the  man  who,  with  eyes 
closed,  crosses  a  railroad  track,  trusting  his  safety  to  the  fact  that 
the  flagman  is  at  his  post,  and  him  who,  waiving  the  use  of  his  eyes, 
attempts  to  pass  from  one  of  those  boats,  concluding  that  all  is  rignt 
because  the  gates  have  been  opened.  A  man's  ej'es  are  the  sentinels 
that  usually  warn  him  of  the  approach  of  danger,  and,  if  he  chooses 
to  abandon  them,  it  is  the  general  rule  of  law  that  he  does  so  at 
his  own  cost."  Tliis  case  limits  or  overniles  New  Jersey  R.  Co.  v. 
Palmer,  33  N.  J.  Law,  90,  which  held  that  where  a  feriyboat  has 
arrived  at  its  dock  in  the  evening,  a  passenger  carried  along  with 
the  crowd,  whose  foot  is  crowded  between  the  boat  and  the  dock 
on  alighting,  is  not  chargeable  with  contributory  negligence,  as  mat- 
ter of  law,  because  at  the  very  instant  of  stepping  onto  the  dock  he 
did  not  examine  particularly  to  see  whether  there  was  a  vacant  space 
between  the  boat  and  the  dock.  In  Fogassi  v.  Railroad  Co.,  19  Misc. 
Rep.  108,  43  N.  Y.  Supp.  268,  reversing  IS  Misc.  Rep.  735,  41  N.  "£. 
Supp.  1115,  following  13  Misc.  Rep.  102,  34  N.  Y.  Supp.  116,  it  was 
held  that  a  passenger  on  a  ferryboat  is  chargeable  with  contributory 
negligence  where  her  fall  into  a  space  about  two  feet  wide  between 
the  boat  and  the  dock  would  not  have  occurred  if  she  had  looked 
(40G) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §160 

the  chain  guard  and  barriers  across  the  bow  of  the  boat 
are  down,  when  warned  and  presumably  ncnitied  by 
those  in  charge  that  a  landing  has  not  been  niade.^ 

Where  a  steamboat  company  has  provided  a  safe 
and  convenient  landing  place  for  passengers,  a  passen- 
ger who  uses  the  freight  landing  place,  after  being 
warned  not  to  do  so,  is  guilty  of  contributory  negli- 
gence." And  where  a  ferryboat  has  two  gangways  by 
which  passengers  can  leave,  a  passenger  cannot  recov- 
er for  injuries  sustained  while  attempting  to  leave  by 
the  gangway  intended  for  teams.^      So  it  is  negligence, 

where  she  was  walking,  or  had  followed  the  other  passengers  leaving 
the  boat. 

3  Davis  V.  Railroad  Co..  8  Or.  172.  But  an  adult  passenger  is  not 
chargeable  with  contributoiy  negligence  in  attempting  to  leave  a 
feny  before  the  guard  chains  are  down,  where  it  appears  that  a 
rule  of  the  company  forbidding  passengers  to  do  so  was  permitted 
by  it  and  its  employes  to  be  habitually  violated.  The  Manliasset,  19 
Fed.  430.      • 

4  Dodge  V.  Steamboat  Co.,  148  Mass.  207,  19  N.  E.  373.  "A  pas- 
senger is  bound  to  obey  all  reasonable  rules  and  orders  of  the  car- 
rier in  reference  to  the  business.  The  carrier  may  assume  that  he 
will  obey,  and  the  earner  owes  him  no  duty  to  provide  for  his  safety 
when  acting  in  di-sobedience.  His  neglect  of  his  duty  in  disobeying, 
in  tlie  absence  of  a  good  reason  for  it,  will  prevent  his  recovery  for 
an  injury  growing  out  of  it." 

5  riraliam  v.  Railroad  Co.,  :v.)  Fed.  .")!t(j.  Hut  a  passenger  leaving 
a  ferryboat  is  not  guilty  of  contributoiy  negligence,  as  matter  of  law. 
in  leaving  the  boat  by  tlie  veliicle  way,  instead  of  tlie  passenger  way. 
on  invitation  of  tlie  ferry  emi)loyes,  so  as  to  be  precluded  from  re- 
covering for  injuries  .sustained  by  being  run  over  by  a  runaway 
horse  owned  by  tlie  feny  company,  whicli  bolted  into  tlie  veiiide 
way.  Watson  v.  Railroad  Co.,  5.5  N.  J.  Law,  125,  2(5  Atl.  13(5.  In 
this  ca.se  it  was  said:  "The  use  for  wliicli  the  way  he  tonk  was 
designed  was  the  transfer  of  controlled  vehicles  to  and  from  tlie 
boat.     Passage  over  it  brouglit  to  him  liiiowledge  of  its  customary 

(407) 


§  IGO  CARRIERS  OF  PASSENGERS.  (Ch.  1'^ 

as  matter  of  law,  for  a  passenger  to  jump  from  the  boat 
to  the  wharf  as  the  boat  is  approaching  or  leaving  it/ 
But  a  passenger  on  a  ferryboat  is  not,  as  matter  of  law, 
guilty  of  contributory  negligence  in  taking  a  position, 

use,  and  suggested  a  prudent  watchfulness  against  the  danger  attend- 
ant on  that  use;  in  other  words,  it  was  a  place  of  obvious,  danger 
from  a  certahi  use,  against  which  it  was  plaintiff's  duty  to  guard, 
and  the  invitation  to  pass  that  way  did  not  absolve  him  from  the 
reasonable  performance  of  his  duty  in  this  i-espect.  But  the  duty 
did  not  extend  to  causes  ab  extra  that  use.  such  as  the  rapid,  uncon- 
trolled career  of  a  wild  liorse,  whose  course  was  undirected,  irregu- 
lar, and  regardless  of  any  way.  and  who,  as  he  rapidly  ran  at  ran- 
dom, happened  to  spring  over  the  end  of  the  bow  to  the  place  wiiere 
plaintiff  was  injiu-ed.  We  think  it  was  not  the  plaintiff's  duty  to 
anticipate  the  use  of  the  driveway  by  a  runaway  horse  of  the  defend- 
ant, and,  speaking  with  more  particularity,  to  anticipate  the  bolting 
of  such  horse  over  the  end  of  the  bow  into  the  driveway."  A  passen- 
ger who.  in  broad  daylight,  ascends  a  narrow  gangv/ay  to  a  vessel 
in  a  careless  and  awkward  manner,  walking  abreast  of  his  wife,  and 
who  stumbles  and  loses  his  balance,  is  guilty  of  contributory  negli- 
gence.    The  Anglo  Norman,  4  Sawy.  185.  Fed.  Cas.  No.  303. 

6  Keokuk  Packet  Co.  v.  Heniy,  50  111.  2G4;  Fish  v.  Ferry  Co.,  4 
Phila.  103.  But  a  passenger  on  a  steamer,  who  is  informed  by  the 
ofhcers  in  charge  that  the  boat  will  not  stop  at  his  destination,  but 
will  be  slowed  down  at  the  wharf,  so  that  he  can  jump  ashore,  is 
not  guilty  of  contributory  negligence  in  making  the  attempt.  Cam- 
eron V.  Milloy,  14  U.  C.  C.  P.  340.  A  passenger  on  a  steamboat,  well 
acquainted  with  tliat  mode  of  travel,  and  of  the  jar  generally  incident 
to  contact  with  the  wharf  in  effecting  a  landing,  Avho  attempts  to  go  to 
the  upper  deck  by  means  of  a  stairway  unprotected  by  a  railing,  as 
the  steamer  is  approaching  a  wharf,  assumes  the  risk  of  being  thrown 
from  the  stairway  by  such  a  jar,  though  she  was  in  charge  of  one 
of  the  boat's  employes,  who  undertook  by  that  means  to  land  her 
on  the  wharf,  in  advance  of  other  passengers.  De  Graf  v.  Naviga- 
tion Co.,  10  Wash.  408.  38  Pac.  1006.  The  soundness  of  this  decision 
is  questionable.  In  New  York  it  has  been  held  that  the  fact  that  a 
passenger  stands  at  the  head  of  a  stairway  on  a  ferryboat  as  it  is 
entering  its  slip  is  not  contributory  negligence,  as  matter  of  law, 
(408) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  ^    lO  1 

as  the  boat  approaches  the  landing  place,  in  the  pas- 
sageway leadings  from  tJie  cabin  to  the  gate,  where  it 
ajjpears  that  such  passageway,  though  not  provided 
with  seats,  is  often  occupied  by  passengers,  without  ob- 
jection, during  the  journey.^  So  the  failure  of  a  pas- 
senger on  a  ferryboat  to  keep  his  seat  until  it  is  moored 
to  the  dock  is  not  contributory  negligence,  as  matter 
of  law,  which  will  defeat  a  recovery  for  injuries  sus- 
tained by  being  thrown  by  an  unusual  shock  as  the 
boat  struck  the  dock.* 

§  161.     BOARDING  PASSENGER  ELEVATOR. 

An  elevator  for  the  carriage  of  persons  is  not,  like 
a  railroad  crossing  at  a  highway,  supposed  to  be  a 
place  of  danger,  to  be  approached  with  great  caution; 
but,  on  the  contrary,  it  may  be  assumed,  when  the  door 

■which  will  preclude  a  recovery  for  his  being  thrown  down  the  stairs 
by  an  unusually  violent  concussion  of  the  feriyboat  with  the  slip. 
Eartlett  v.  Transportation  Co.,  57  N.  Y.  Super.  Ct.  348,  8  N.  Y.  Supp. 
r.OO.  affirmed  13<i  N.  Y.  Oni),  29  N.  E.  10:«.  Nor  is  it  contributory  neg- 
lijrence,  as  matter  of  law.  for  a  passenger  to  descend  the  stairway 
"without  taking  hold  of  the  railings  as  the  boat  is  entering  the  slip. 
Id.  So  the  fact  that  a  passenger  on  a  feri-jboat  stands  in  front  of 
tlie  guard  chains  as  the  boat  approaches  its  landing  is  not  contribu- 
tory negligence,  as  matter  of  law.  ami  does  no't  necessarily  bar  a  re- 
covery for  injuries  sustained  by  reason  of  the  concussion  of  the  boat 
■n-ith  the  wharf.  Gannon  v.  Ferry  Co.,  29  Hun,  631.  So  a  passen- 
ger on  a  steamboat  is  not,  as  matter  of  law,  guilty  of  contributory 
negligence  in  leaning  against  the  gangway,  Avhich  has  been  negligently 
left  unfastened,  by  reason  of  which  he  falls  overboard,  and  is 
drowned.      McAdam  v.  Ross.  22  Nova  Scotia,  2(j4. 

7  reverly  v.  City  of  Boston,  1.16  Mass.  36G. 

8  Sm  lling  V.  Feny  Co.,  ."59  Hun.  619,  13  X.  Y.  Supp.  3SS.  affirmed 
128  N.  Y.  r,79,  28  X.  E.  2.50;  Camden  &  P.  S.  Ferry  Co.  v.  Monaghan 
(Fa.)  10  Wkly.  Xotes  Cas.  46. 

(4UiJ) 


I  162  CARRIERS  OF  PASSENGERS.  (Ch.  10 

is  thrown  open  by  an  attendant,  to  be  a  place  which 
may  be  safely  entered,  without  stopping  to  look,  listen, 
or  make  a  special  examination,  though  the  shaft  is  not 
lighted/ 

§  162.     DURING  TRANSPORTATION. 

The  rule  that  a  person  approaching  a  railroad  cross- 
ing on  a  highway  must  stop,  look,  and  listen  has  no 
application  to  a  passenger  on  a  street  car;  and  he  is 
under  no  obligation  to  look  out  and  listen,  and  to  jump 
from  the  car  in  apprehension  of  a  collision  with  a  train 
on  the  crossing.  He  can  reasonably  assume  that  prop- 
er care  and  attention  Avill  be  given  at  the  crossing,  by 
those  in  charge  of  the  car,  before  an  attempt  will  be 
made  to  go  over  it/  So  a  passenger  who  sees  a  train 
approaching  a  crossing  on  an  intersecting  road  is  not 
guilty  of  contributory  negligence  because  he  fails  to 
pull  the  bell  rope,  and  warn  the  engineer  of  the  danger. 
As  a  passenger,  it  is  no  part  of  his  province  to  inter- 
fere in  any  manner  with  the  management  of  the  train." 
Neither  does  knowledge  by  a  passenger  on  a  street  car 
that  a  portion  of  the  track  is  undergoing  repair  charge 
him  with  contributory  negligence  in  riding  over  that 
portion.  He  has  a  right  to  assume,  in  the  absence  of 
any  stipulation  or  warning  to  the  contrary,  that  all  the 
necessary  precautions  have  been  taken  for  his  safe 

§  161.  1  Tousey  v.  Roberts,  114  N.  Y.  312,  21  N.  E.  399,  affirming 
53  X.  Y.  Super.  Ct.  446. 

§  162.  1  O'Toole  v.  Railroad  Co..  1.58  Pa.  St.  99.  27  Atl.  737;  Mc- 
Callum  V.  Railroad  Co.,  38  Hun,  569. 

2  Grand  Rapids  &  I.  R.  Co.  v.  Ellison,  117  Ind.  234,  20  N.  E.  135. 

(410) 


Oh.    10)  CONTRIBUTORY   NEGLIGENCE.  §    lli2 

transportation,  whatever  the  condition  of  the  track 
may  in  fact  be.^ 

A  passenger  on  a  sleeping  car,  who,  while  groping 
in  the  dark  for  the  water-closet,  opens  the  door  in  the 
vestibule  between  the  two  cars,  and  falls  out,  is  not 
negligent,  as  matter  of  law,  in  not  calling  the  porter, 
and  waiting  for  a  light*  So  the  failure  of  an  inexpe- 
rienced and  timid  female  passenger  to  call  attention  to 
the  cold  condition  of  the  car  on  a  journey  made  in  ex- 
tremely cold  weather  is  not  negligence,  as  matter  of 
law,  which  will  preclude  recovery  for  a  disease  caused 
by  the  cold;  but  the  effect  of  such  failure,  as  bearing 
on  the  question  of  contributory  negligence,  should  be 
left  to  the  jury,  to  be  determined  from  all  the  evidence 
in  the  case/  Where  a  freight  train  breaks  during  the 
night,  leaving  the  caboose  behind,  a  passenger  is  not 
guilty  of  contributory  negligence,  as  matter  of  law,  in 
lying  down  in  the  caboose,  pursuant  to  the  directions 
of  the  train  hands,  who  expect  the  balance  of  the  train 
to  be  slowly  backed  as  soon  as  the  break  is  discovered ; 
and  the  passenger  may  recover  for  injuries  sustained 
in  a  collision  with  another  section  of  the  train,  which 
also  broke  loose,  and  ran  backward  on  a  down  grade 
into  the  caboose.* 

8  Citizens'  St.  Ky.  Co.  v.  Twinanie,  111  Ind.  587.  V.)  N.  E.  55, 

4  Piper  V.  Railroad  Co.,  80  Hun,  75,  M  N.  Y.  Sui)]).  lo7i2:  Id..  7(i  Ilun. 
44.  27  X.  Y.  Supp.  50.3;    Id.,  78  Hun,  (\U.  28  N.  Y.  Supp.  1114. 

0  Hastings  v.  Railroad  Co.,  53  Fed.  224. 

6  Delaware,  L.  &  W.  R.  Co.  v.  Ashley.  14  C.  C.  A.  .3(iS,  (i7  Fed.  209. 
Owing  to  the  breakdown  of  the  engine  of  a  pa.ssenger  train,  the  en- 
gineer stopped  it  for  repairs  between  stations  in  tlie  nigliitinic  :Most 
of  the  passengers  got  off  the  train,  llciuing  a  freiglit  trniii  ap- 
.proaching   from   behind,   the   engineer   started    ilie   passenger   train. 

(411) 


§    1(53  CARRIERS   OF   PASSENGERS.  (Ch.    10 

§  163.     PLACING  HAND  IN  DOOR  JAMB. 

The  act  of  a  passenger  in  placing  his  hand,  during 
transportation,  in  such  a  position  upon  the  jamb  of  a 
door  that  it  will  certainly  be  injured  by  any  one  closing 
the  door,  is  contributory  negligence.  The  door,  though 
securely  fastened,  is  capable  of  being  suddenly  closed, 
and  is  likely  to  be  closed  by  either  passengers  or  em- 
ployes of  the  company.^      But  a  passenger  on  an  ele- 

Helcl.  that  a  passenger,  seeing  his  train  about  to  start,  and  having 
no  kno\\led.ge  of  the  impending  collisiou.  was  not  negligent,  as  mat- 
ter of  law.  in  getting  on  the  train,  though  he  would  have  escaped 
the  collision  if  lie  had  remained  on  the  ground.  Gulf,  C.  &  S.  F.  R. 
Co.  V.  Downman  (Tex.  Civ.  App.)  28  S.  W.  d22.  A  passenger  on  a 
street  car,  in  obedience  to  a  request  of  a  conductor,  got  off:  the  car 
to  assist  in  getting  it  around  an  obstruction  on  the  track.  While  so 
engaged,  he  was  injured  by  another  car,  which  jumiied  a  parallel 
track,  and  struck  him.  Held,  that  plaintiff's  presence  in  the  street  was 
lawful,  and,  having  no  warning  of  the  danger,  he  is  not  chargeable 
with  contributory  negligence.  Stastney  v.  Railroad  Co.,  Gl  N.Y. Super. 
Ct.  104.  IS  X.  Y.  Supp.  800,  aftirmed  in  338  N.  Y.  609,  33  N.  B.  10S2. 
The  progress  of  a  passenger  train  was  interrupted  by  wreck  of  a 
freight,  consisting  principally  of  oil  carsn  the  oil  in  which  was  burn- 
ing. The  passengers  were  conducted  aroxmd  the  wreck,  200  feet  from 
the  tanks,  to  await  another  train.  Held,  that  one  of  the  passengers, 
who,  from  motives  of  ciu'iosity,  approached  to  within  80  feet  of  the 
wreck,  where  he  was  injured  by  an  explosion  of  the  burning  oil,  was 
guilty  of  contributory  negligence,  as  matter  of  law.  Plaintiff  left  a 
safe  place  provided  by  the  comrany,  and  took  an  exposed  position,  not 
intended  or  pointed  out  for  passengers,  and  he  cannot  hold  defendant 
liable  for  injuries  to  which  such  act  contributed.  Conroy  v.  Railway 
Co.  (Wis.)  70  N.  W.  486. 

§  163.  1  Texas  &  P.  Ry.  Co.  v.  Overall.  82  Tex.  247,  18  S.  W.  142. 
A  passenger  is  guilty  of  contributory  negligence  in  leaving  his  hand  in 
the  door  jamb  for  about  half  a  minute  after  getting  into  the  carriage, 
and  cannot  recover  for  injuries  sustained  by  the  shutting  of  the  door 
by  the  porter,  who  warned  passengers  to  take  their  seats,  and  who  did 
(412) 


Cll.    10)  CONTRIBUTORY   NEGLIGENCE.  §    103 

Tated  ti'ain,  who  opens  the  door  of  tlio  car  "vvbile  tlu' 
train  is  standing-,  and  takes  a  position  in  the  doorway, 
is  not  chargeable  with  contribntory  negligence,  as  mat- 
ter of  law,  in  failing  to  shove  the  door  back  over  the 
catch,  and  is  not  thereby  preclnded  from  recovering 
for  injuries  sustained  by  the  door  swiuging  to  upon  her 
hand,  caused  by  the  sudden  starting  of  the  train  before 
she  had  an  opportunity  to  alight.-  So  a  passenger 
who,  Avith  a  parcel  in  his  right  hand,  attempts  to  get 
into  a  railroad  carriage  by  placing  his  left  hand  on  the 
back  of  the  door,  is  guilty  of  a  want  of  caution;  but 
whether  it  is  negligence  which  will  prevent  a  recovery 
for  injuries  sustained  by  his  hand  being  jammed 
against  the  door  post  is  a  question  for  the  jury,  where 
it  further  appears  that  it  was  dark,  and  it  is  left  in 
doubt  Avhether  there  was  any  handle  which  he  could 
liave  grasped  to  assist  him  in  getting  on  the  car.^ 

not  see  plaintiff's  hand.  Richardson  v.  Railway  Co..  37  Law  T.  C.  P. 
300.     See,  also,  ante,  §  87,  as  to  slamming  of  car  door. 

2  Baker  v.  Railroad  Co.,  118  N.  Y.  533,  23  X.  E.  88.-,,  affirming  '>i  N. 
T.  Sillier.  Ct.  3U4.  It  is  not  negligence,  as  matter  of  law,  for  a  pas- 
senger on  an  clmated  railroad  to  arise  in  her  seat  as  the  car  is  ap- 
proaching her  station,  and  to  go  to  the  door  of  the  car,  which  is 
held  open  by  one  of  the  trainmen;  and  where  she  grasps  hold  of  the 
door  frame,  to  keep  herself  from  falling  by  reason  of  a  sndden  jar  of 
the  car,  she  may  recover  for  injuries  sustained  by  reason  of  the 
trainman's  act  in  negligently  permitting  Ihe  door  to  slam  on  her 
hand.     Colwell  v.  Railway  Co.,  10  X.  Y.  Supp.  U3tJ,  57  Hun,  4.->2. 

3  Fordham  v.  Railway  Co.,  L.  R.  3  C.  1'.  3G8,  L.  R.  4  C.  P.  019. 

(413) 


§164  CARRIERS  OF  PASSENGERS.  (Ch.    10 

§  164.     PROJECTING     LIMB    OR  HEAD    OUTSIDE     OF 

CAR. 

The  weight  of  authority  and  of  reason  is  in  favor  of 
the  proposition  that  it  is  negligence  per  se,  to  be  so 
declared  by  the  court  as  matter  of  law,  for  a  passen- 
ger on  a  steam  railroad  to  voluntarily  or  inattentively 
protrude  his  arm,  hand,  elbow,  or  head  through  the 
Avindow  of  a  car  while  in  motion,  and  beyond  the  outer 
edo-e  of  the  window,  or  outer  surface  of  the  car;  and  a 
recovery  cannot  be  had  for  any  injury  which,  but  for 
such  negligence,  could  not  have  been  sustained.^ 
"Windows  are  not  provided  in  cars  that  passengers 
may  project  themselves  through  or  out  of  them,  but  for 
the  admission  of  light  and  air.  They  are  not  intended 
for  occupation,  but  for  use  and  enjoyment  without  oc- 

§  1G4.  1  Georgia  Pac.  Ry.  Co.  v.  Underwood,  90  Ala.  49,  S  South, 
IIG;  Indianapolis  &  C.  R.  Co.  v.  Rutlierford,  29  Ind.  82;  Favre  v. 
Railroad  Co.,  91  Kj-.  541,  10  S.  W.  370;  Louisville  &  N.  R.  Co.  v. 
Sicldngs,  5  Bush  (Ky.)  1;  Morel  v.  Insurance  Co.,  4  Bush  (Ky.)  535; 
Pittsburg  c^c  C.  R.  Co.  v.  Andrews.  39  Md.  329;  Todd  v.  Old  Colony 
R.  Co..  3  Allen  (Mass.)  IS,  7  Allen  (Mass.)  207;  Pittsburg  &  C.  R. 
Co.  V.  McClurg,  50  Pa.  St.  294,  disapproving  New  Jersey  R.  Co.  v. 
Kennard,  21  Pa.  St.  203,  and  overruling  Laing  v.  Colder,  8  Pa.  St. 
479;  Richmond  i«c  D.  R.  Co.  v.  Scott,  88  Va.  958,  14  S.  E.  763;  Dun 
V.  Railroad  Co.,  78  Va.  045.  A  passeng.  r  who  inadvertently  and  vol- 
untarily protrudes  his  arm  out  of  an  open  window,  though  not  more 
than  two  inches  beyond  the  exterior  surface  of  the  car,  while  the 
train  is  going  through  a  tunnel,  is  guilty  of  contributory  negligence, 
as  matter  of  law.  "We  cannoit  furnish  any  rule  by  which  to  meas- 
ure the  distance  a  passenger  may  protrude  his  arm  before  it  can  be 
said  that  he  is  guilty  of  negligence.  It  is  the  fact  that  he  does  si), 
without  any  qualifying  circumstances  impelling  him,  not  the  dis- 
tance so  protruded,  that  constitutes  negligence."  Clark's  Adm'x  v. 
Railroad  Co.  (Ky.)  39  S.  W.  840. 
(414) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    164 

cnpation.  No  possible  necessity  of  the  passeiijier  can 
be  subserved  by  the  protrnsion  of  his  person  through 
them.  Neitlier  his  convenience  nor  comfort  requires 
that  he  should  do  so.  It  may  be — doubtless  is — true, 
that  men  of  oidinary  prudence  and  care  habitually  hau 
ui)on,  or  rest  their  arms  upon,  the  sills  or  windows  by 
which  they  ride.  But  this  is  a  very  different  thing 
from  protrusion  beyond  the  outer  edge  of  the  sills,  and 
bevond  the  surface  of  the  car."  ^  In  Kentucky  the 
courts  have  even  gone  so  far  as  to  hold  that  there  can 
be  no  recovery  for  the  death  of  a  passenger  who,  while 
the  train  is  going  through  a  tunnel,  protrudes  his  head 
from  the  car  window  to  vomit,  unless  the  train  hands 
knew  of  his  illness  or  his  perilous  position,  or  could 
have  known  of  it  by  the  exercise  of  reasonable  care, 
and  then  failed  to  take  proper  precautions  for  his  safe- 
ty.^ In  an  early  Wisconsin  case,  however,  it  was  held 
that  whether  or  not  a  passenger  is  guilty  of  contribu- 
tory negligence  in  permitting  his  arm  to  protrude  be- 
yond the  exteftial  surface  of  the  car  is  a  question  of 
fact  for  the  jury,  and  not  of  law  for  the  court.*      The 

2  (leorjiia  Pac.  Ky.  Co.  v.  Underwood,  fiO  Ala.  49,  8  South.  116. 

3  Shelton's  Adm'r  v.  Railroad  Co.  (Ky.)  oO  S.  W.  842. 

4  Spencer  v.  Railroad  Co.,  17  Wis.  487.  "It  is  probably  the  habit 
of  every  person  while  riding  in  the  cars  to  rest  the  arm  upon  the 
base  of  the  window.  If  the  window  is  open,  it  is  liable  to  extend 
slightly  outside.  This  we  suppose  is  a  common  habit.  There  is,  al- 
ways more  or  less  space  between  the  outside  of  the  car  an.l  any 
structure  erected  by  the  side  of  the  track,  and  must  necessarily  I  e  s«, 
to  accommodate  the  motion  of  the  train.  Passengers  knoAV  tliis.  and 
regulate  their  conduct  accordingly.  They  do  not  suppose  tliat  the 
agents  and  managers  of  the  road  suiier  obstacles  to  be  so  placed  as 
barely  to  miss  tlie  car  while  i-assing.  And  it  .seems  to  us  almost 
absurd  to  hold  that  in  every  case,  and  under  all  circumstance  s,  if  the 

(415) 


I    1(54  CARRIERS  OF  PASSENGERS.  (Ch.    10 

« 

same  niliug  has  been  made  in  South  Carolina/'  in 
Texas,'  and  in  Australia.'  In  Illinois,  also,  under  the 
now  exploded  doctrine  of  comparative  negligence,  it 
lias  been  held  that  the  negligence  of  a  passenger  in 
permitting  his  arm  to  rest  on  the  base  of  a  car  window, 
and  to  slightly  project  outside,  is  slight,  when  compar- 
ed with  the  negligence  of  the  railroad  company  in  per- 
mitting freight  cars  to  stand  on  a  parallel  track,  within 
a  few  inches  of  the  passing  passenger  train;  and  hence 
the  passenger  may  recover  for  the  breaking  of  his  arm 
by  coming  in  contact  with  the  freight  traiu.^ 

Of  course,  a  passenger  Avho  rests  his  elbow  on  the  sill 
of  an  open  window,  without  projecting  it  beyond  the 
car,  and  whose  arm  is  thrown  outside  of  the  car  by  the 
force  of  a  collision,  and  is  injured,  does  not  contribute 
to  the  cause  of  the  injury  by  his  own  negligence.®  So 
where  there  is  evidence  that  it  is  necessary  for  a  mail 

party  injured  had  his  arm  the  smallest  fraction  of  au  inch  beyond  the 
outside  surface,  he  was  wanting  in  ordinary  care  and  prudence."     Id. 

6  Quinn  V.  Railroad  Co.,  29  S.  C.  381,  7  S.  E.  Gl<l. 

6  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Daushank,  6  Tex.  Civ.  App.  385,  25 
S.  W.  295.  See  ante,  §  28,  as  to  the  province  of  court  and  jury  in 
Texas  and  South  Carolina. 

■?  Rex  V.  Victorian  Ry.  Com'rs,  18  Vict.  Law  R.  250,  where  the 
American  cases  are  criticisied,  and  the  court  said:  "Our  Victorian 
first-class  carriages  ai-e  generally  so  constructed  that  passengers  can 
put  their  heads  or  lean  their  bodies  out  of  the  window,  or  sit  with 
their  elbows  protruding,  and  there  is  nothing  about  them  to  indicate 
that  thos,e  who  do  so  will  incur  any  danger." 

8  Chicago  &  A.  K.  Co.  v.  Pondrom,  51  111.  333.  See  post,  §  192,  as 
to  the  doctrine  of  comparative  negligence. 

9  Farlow  v.  Kelly,  108  U.  S.  288,  2  Sup.  Ct.  555;  Curtis  v.  Railway. 
€  McLean,  401,  Fed.  Cas.  No.  3,501;  Schneider  v.  Railroad,  54  Fed.4(>ij, 
8  C.  C.  A.  571,  60  Fed.  210;  Carrico  v.  Railroad  Co.,  35  W.  Va.  389, 
14  S.  E.  12;    Winters  v.  Railroad  Co.,  39  Mo.  4G7. 

(416) 


Ch.    10)  CONTRIBUTORY   XEGLIGEXCE.  §    16-4 

aiient  to  put  his  head  out  of  the  window  of  his  car  on 
approaching  the  various  stations,  and  it  is  shown  that 
this  is  generally  done,  the  question  whether  a  mail 
agent  is  guilty  of  negligence  in  so  doing  is  for  the 
jury/" 

A  distinction  is  made  in  this  respect  by  some  of  the 
courts  between  street  cars  and  the  ordinary'  steam- 
railway  carriages.  It  has  been  held  in  some  cases  not 
to  be  negligence,  as  matter  of  law,  for  a  passenger  to 
project  his  hand  or  his  arm  a  few  inches  beyond  the 
external  surface  of  a  street  car/^  In  Louisiana,  in  a 
case  arising  in  New  Orleans,  it  is  said:  "The  evidence, 
as  well  as  common  observation,  establishc^s  that  it  is 
customary  practice  for  persons  riding  in  street  cars 
of  this  city,  when  not  crowded,  to  sit  with  an  arm  rest- 
ing on  the  window,  and  projecting  more  or  less  outside 
of  the  car.  This  practice  is  suggested,  if  not  invited, 
by  the  construction  of  the  windows,  which  are  of  a 
height  that  renders  such  a  position  easy  and  comforta- 
ble, and  also  by  the  natural  inclination  to  face  the  di- 
rection in  which  one  travels,  to  look  out  at  passing  ob- 
jects, and,  in  a  climate  like  ours,  to  turn  the  face  so  as 
to  catch  the  breeze."  ^^      In  Tennsylvania,  however,  it 

10  Houston  &  T.  C.  Ry.  Co.  v.  Ilaiupton,  04  Tex.  427.  The  fact 
thnt  a  passenger's  elbow  projects  siijihtly  out  of  au  opeu  window  does 
not.  as  matter  of  law,  preclude  a  recovery  for  injuries  to  his  hand 
and  wri.st,  which  were  insiide,  and  Aviiieh  were  struck  by  a  stick  of 
cordwood  falling  through  the  opeu  window  from  a  pile  near  the  (rack. 
The  projection  of  the  elbow  is  not  the  proximate  cause  of  the  accident. 
Moakler  v.  itailway  Co.,  18  Or.  ISU,  22  I'ac.  '.)48. 

11  Miller  v.  Railroad  Co.,  5  Mo.  Apj).  471;  Summers  v.  Railroad 
Co.,  34  La.  Ann.  139. 

12  Summers  v.  Railroad  Co.,  34  La.  Ann.  139.     iUil  a  i  assi'uger  ou 

V.  1  FET.C.Mt.FAs. 27  if^^^  ) 


§    164  CARRIERS  OF  PASSENGERS.  (Ch.    10 

is  negligence,  as  matter  of  law,  for  a  passenger  on  a 
street  car  to  protrude  any  portion  of  his  arm  out  of  the 
car  window,  whether  he  does  it  consciously  or  uncon- 
sciously." But  if  his  arm  is  on  the  window  sill, 
wholly  within  the  car,  and  is  thrown  out  by  a  jolt,  then 
the  question  of  his  contributory  negligence  is  for  the 
jury/*  And  where  a  passenger  in  a  street  car,  while 
taking  his  seat,  rests  his  hand  on  and  partially  over 
the  base  of  an  open  window,  and  it  is  immediately 
struck  by  an  obstruction  within  an  inch  of  the  car,  the 
question  of  contributory  negligence  is  for  the  jury/^ 
So  where  a  street  car  runs  off  the  track,  and  is  driven 
over  cobble  stones  for  a  distance  of  two  squares,  it  is 
not  negligence  for  a  passenger  to  grasp  the  window  post 

a  street  car  is  guilty  of  negligence  in  putting  his  liead  out  of  the  win- 
dow in  the  nighttime,  to  ascertain  the  color  of  tlie  car,  and  identify 
it,  and  cannot  recover  from  an  electric  light  company  which  has  put 
a  pole  so  near  the  track  that  his  head  came  in  contact  therewith. 
Moore  v.  Illuminating  Co.,  43  La.  Ann.  792,  9  South.  433. 

13  People's  P.  Ry.  Co.  v.  Lauderbach,  4  Penny.  (Pa.)  406.  If  a 
passenger  on  a  street  car  projects  his  arm  from  the  window,  and  that 
arm  is  injured,  or  injury  results  from  that  projection,  he  cannot  re- 
cover.    Goorin  v.  Traction  Co.  (Pa.  Sup.)  36  Atl.  207. 

14  Germantown  P.  Ry.  Co.  v.  Brophy,  105  Pa.  St.  38. 

15  Dahlberg  v.  Railway  Co.,  32  Minn.  404,  21  N.  W.  545.  Whether 
a  passenger  on  an  open  electric  car,  who,  leaving  his  seat,  goes  to  the 
platform,  where  the  conductor  is  standing,  and,  for  the  purpose  of  ob- 
serving a  fire,  projects  his  head  beyond  the  side  of  the  car,  so  that  he 
is  struck  by  a  tree,  is  guilty  of  contributory  negligence,  is  a  question 
for  the  jury.  Sias  v.  Railway  Co.,  92  Hun,  140,  36  N.  Y.  Supp.  378. 
A  passenger  on  a  street  car  is  not,  as  matter  of  law,  guilty  of  contribu- 
tory negligence  in  standing  on  the  rear  platform,  with  his  hand  on 
the  railing,  and  may  recover  against  the  owner  of  a  dray  for  injuries 
sustained  by  his  hand  being  struck  by  the  dray.  Seigel  v.  Eisen,  41 
Cal.  109. 

(418) 


Ch.    10)  CONTRIBUTORY  XEGLIGEXCE.  §    10-i 

in  such  a  manner  that  the  back  of  his  hand  protrudes 
from  the  car.^®  But  a  passenger  on  an  open  street 
car,  who,  while  the  car  is  in  rapid  motion,  phices  one 
of  his  feet  on  tiie  running  board,  and  permits  a  portion 
of  his  body  to  extend  beyond  the  exterior  surface  of  the 
car,  is  guilty  of  contributory  negligence,  as  matter  of 
law,  which  precludes  recovery  for  his  death  caused  by 
his  head  striking  against  one  of  the  poles  planted  in 
close  proximity  to  the  track/'  In  Massachusetts  it 
has  been  held  that  a  passenger  who  stands  on  the  low- 
est step  of  a  street  car  moying  four  miles  an  hour,  with 
one  hand  on  the  dasher  rail  and  the  other  on  the  body 
rail,  facing  towards  the  street,  and  who  intentionally 
leans  out  beyond  the  car  to  look  in  the  direction  from 
which  it  came,  is  guilty  of  contributory  negligence,  as 
matter  of  law,  and  cannot  recover  for  injuries  sustain- 
ed hj  striking  his  head  against  a  post  standing  within 
three  feet  of  the  track,  and  visible  from  the  car  a  quar- 
ter of  a  mile;  but  a  momentary  or  casual  leaning  out, 
such  as  would  be  incident  to  an  effort  to  secure  a  safe 
or  more  comfortable  position,  is  not  negligence,  as  mat- 
ter of  law/® 

The  rule  that  it  is  negligence  per  se  for  a  passenger 
to  protrude  any  portion  of  his  body  outside  of  the 
windows  of  a  car  does  not  apply  to  a  passenger  on  a 
stagecoach.  Etiilway  coaches  pass  along  an  undevi- 
ating  track,  and  often  within  a  few  inches  of  signal 
posts,  switch  bars,  cattle  guards,  bridge  timbers,  and 

16  North  Baltimore  Pass.  Ky.  Co.  v.  Kaskell,  78  Md.  517,  28  All.  410. 
Instate  V.  K;ill\vny  Co.  (Md.)  34  Atl.  1130;    Gilly  v.  Kai.road  Co. 
(La.)  21  South.  830. 
18  Cummiiiics  v.  Itailway  (Mas.«.)  41  N.  E.  12G. 

(419) 


§  165  CARRIERS  OF  PASSENGERS.  (Ch.  10 

cars  upon  side  tracks,  rendering  it  dangerous  for  pas- 
sengers to  expose  any  portion  of  the  body  beyond  the 
outer  line  of  the  coaches,  which  themselves  project  be- 
yond the  wheels  and  the  truck.  But  stagecoaches  do 
not,  in  this  particular,  differ  from  other  road  vehicles^ 
the  wheels  of  which  project  laterally  beyond  the  body 
of  the  vehicle,  which  circumstance,  in  connection  with 
the  different  character  of  the  roadway  and  mode  of 
transportation,  is  an  immunity  against  danger  from 
the  mere  projection  of  an  arm  outside  the  window,  or 
beyond  the  line  of  the  body  of  the  vehicle.^* 

§  165.     STANDING,  OR  OCCUPYING  DANGEROUS 

SEAT,  IN  CAR. 

A  passenger  is  not,  as  matter  of  law,  guilty  of  con- 
tributory negligence  in  arisiug  in  his  seat  as  the  train 
is  approaching  his  station,  for  the  purpose  of  hasten- 
ing his  departure  from  the  car,  but  the  question  is  one 
of  fact  for  the  jury.^  The  fact  that  he  stands  near 
the  open  car  door  does  not  alter  this  rule.^      Neither 

19  Sandersou  v.  Frazier,  8  Colo.  T!t,  5  Pae.  (>32. 

§  1G5.  1  Barden  v.  Railroaa,  llil  Ma-g.  42G;  Wylde  v.  Railroad 
Co.,  53  N.  y.  15G;  Newton  v.  Railroad  Co.,  80  Him,  491,  30  N.  Y. 
Snpp.  488;  Chicago  &  A.  R.  Co.  v.  Aruol.  144  111.  201,  33  N.  E.  204. 
A  passenger  on  a  train  so  crowded  that  the  passageways,  platforms, 
and  even  the  roof  were  occnpied,  was  promised  by  the  conductor 
that  the  train  would  be  stopped  at  a  flag:  station,  to  enable  him  to 
get  off.  Held,  that  it  could  not  be  said,  as  matter  of  law,  that  the 
passenger  was  careles,s,  because,  a.s  the  train  approached  the  flag 
station,  where  the  stop  would  ordinarily  be  very  short,  he  rose  from 
his  seat,  endeavored  to  make  his  way  to  the  door,  and,  having  reached 

2  Worthen  v.  Railway  Co.,  125  Mass.  99;    Condy  v.  Railway  Co.,  13 
Mo.  App.  587,  588. 
(420) 


Ch.    10)  CONTRIBUTORY   NEGLIGEXCE.  §    165 

is  a  passenger  gniltT  of  contribntorv  nogligence,  as 
matter  of  law,  in  arising  from  his  seat,  during  the 
journey,  to  pick  up  a  bundle  which  has  fallen  to  the 
tioor,^  nor  to  stand  near  a  stove,  for  the  purpose  of 
warming  himself.*  A  passenger  who,  before  he  had 
seated  himself  in  a  car,  was  injured  by  the  negligence 
of  defendant  in  causing  another  car  to  come  into  vio- 
lent contact  with  the  former,  is  not  precluded  from  re- 
covering merely  because  he  did  not  occupy  the  first 
vacant  seat  he  came  to,  nor  because  he  incumbered 
himself  with  bundles,  or  with  the  care  of  children, 
which  impeded  his  movements.^ 

Discomforts  and  dangers  are  more  incident  to  travel 
on  freight  than  on  passenger  trains,  and  a  passenger 
on  the  former  is  called  on  to  exercise  a  higher  degree 
of  care  than  the  latter.*'  The  fact  that  a  passenger 
in  a  caboose  is  standing,  when  there  are  some  vacant 

the  platform,  there  fell,  or  was  pushed  out  by  the  surging  crowd 
which  occupied  it.     Treat  v.  Railroad  Corp.,  131  Mass.  371. 

3  Coudy  V.  Railway  Co.,  85  Mo.  79. 

4  Northern  Pac.  R.  Co.  v.  Hesa,  2  Wash.  St.  383,  26  Tac.  S60.  A 
passenger  has  the  right,  while  on  his  journey,  to  go  from  his  seat 
to  the  water-closet  of  the  car  in  which  he  is  riding,  and  may  recover 
for  injuries  sustained  by  being  thrown  out  of  an  open  door  by  a  vio- 
lent jerlc  of  the  train.     I.avis  v.  Railroad  Co.,  54  111.  App.  036. 

5  Tillett  V.  Railroad  Co.,  118  X.  C.  lo:n.  24  S.  E.  111. 

6  Harris  v.  Railroad  Co.,  Si>  Mo.  2;i3,  1  S.  W.  325;  Felton  v.  Horner. 
^7  Tenu.  57!>,  37  S.  W.  (>!)ti.  A  passenger  on  a  freight  train,  who.  ))y 
the  exercise  of  ordinary  care,  may  know  that  tlie  tr.'iin  has  stopju'd 
to  do  switching,  and  tliat  a  part  of  the  train  is  likely  to  be  barUcd 
against  the  part  to  which  the  caboose  is  attached,  is  guilty  of  contrii>- 
utorj-  negligence  in  leaving  his  seat,  and  standing  u])  in  the  car,  with- 
out thinking  of  these  tilings.  Harris  v.  Railroad  ("o.,  8!)  Mo.  2:1'!,  1 
S.  W.  325. 

(421) 


§  165  CARRIERS  OF  PASSENGERS.  (Ch.  10 

seats,  is  some  evidence  of  contributory  negligence, 
wliich  ouglit  to  be  submitted  to  the  jury,  in  an  action 
for  injuries  sustained  in  being  thrown  down  by  the 
sudden  starting  of  the  train."^  But  a  passenger  is  not 
guilty  of  negligence,  as  matter  of  law,  in  arising  from 
his  seat  in  the  caboose  on  the  sounding  of  a  whistle 
indicating  approach  to  a  station.^  Kor  is  a  passenger 
on  a  freight  train  guilty  of  contributory  negligence, 
as  matter  of  law,  in  leaving  her  seat  to  get  a  drink  of 
water,  nor  does  she  assume  the  risk  of  a  sudden  and 
violent  jar,  caused  by  the  negligent  application  of  the 
air  brakes.^  A  passenger  who  occupies  the  arm  of  a 
seat  in  a  coach  on  a  freight  train  when  he  knows  that 
there  are  other  cars  to  be  coupled,^*'  or  who  sits  in  the 
conductor's  chair,  near  the  open  sliding  door  of  the 
caboose,  when  there  are  vacant  seats  away  from  the 
door  for  the  use  of  passengers/^  is  guilty  of  negligence^ 
as  matter  of  law. 

7  Wallace  v.  Railroad  Co.,  98  N.  C.  494,  4  S.  E.  503. 

8  Lusby  V.  Railrcad  Co.,  41  Fed.  181. 

«  Indiana,  I.  &  I.  R.  Co.  v.  Master.son  (Ind.  App.)  44  N.  E.  1004. 
But  a  woman  63  years  old,  and  crippled  by  a  former  dislocation  of  her 
hip,  traveling  in  the  caboose  of  a  freight  train,  is  negligent  in  leaA^- 
Ing  her  seat  to  get  a  drink,  while  the  engine  is  switching  cars;  and 
she  cannot  recover  for  injiu'ies  in  a  fall  caused  by  the  jolt  in  coupling 
cars,  where  it  appears  that  the  jolt  Avas  not  greater  than  us.nal  in 
such  cases,  and  tliat  she  was  aware  that  such  jolts  necessarily  fol- 
lowed coupling  of  cars.     Felton  v.  Horner,  97  Teun.  .579,  37  S.  W.  696. 

10  Smith  V.  Raih'oad  Co.,  99  N.  C.  241,  5  S.  E.  896. 

11  Norfolk  &  W.  R.  Co.  v.  Ferguson,  79  Ya.  241.  Though  there 
are  stationary  seat.s  in  a  caboose,  yet  a  passenger  is  not  guilty  of 
c?ontributor}'  negligence,  as  matter  of  law,  in  sitting  on  a  movable 
chair,  so  as  to  preclude  recovery  for  injuries  sustained  in  being  thrown 
from   the   chair  by   a   concussion   with   cars,    which   were   violently 

(422) 


Ch,  10)  CONTRIBUTORY  NEGLIGENCE.  §    1G'> 

TS'ith  respect  to  street  cars,  the  rule  seems  to  be  even 
less  stringent  tlian  in  respect  to  ordinary  railway  cars. 
A  passenger  is  not  guilty  of  negligence,  as  matter  of 
law,  in  moving  about  tlie  floor  of  a  horse  car  while  in 
motion;  but  it  is  a  question  of  fact  for  the  jury  wheth- 
er, under  all  the  circumstances  existing  at  the  time, 
it  shows  a  want  of  reas-onable  care/-  So  a  person  who 
enters  an  open  street  car,  the  seats  of  which  are  all 
occupied,  is  not  guilty  of  negligence,  as  matter  of  law, 
in  standing  between  two  seats,  holding  onto  tJie  scat 
in  front/'      Where  the  only  passenger  on  a  street  car, 

backed  against  the  caboose.  Quackenbiish  v.  Railway  Co..  73  Towa. 
458,  35  N.  W.  523.  A  passenger  on  an  excursion  train,  who  avats  liini- 
self  on  the  rear  end  of  the  box  of  an  open  car,  not  exceeding  two 
and  one-half  inches  in  thickness,  with  his  feet  elevated  by  being 
placed  In  the  seat  directly  in  front  of  him,  and  with  no  possible  oppor- 
tunity of  protecting  himself  in  case  of  a  sudden  jolt  of  the  car,  when 
he  might  have  found  a  safe  seat  in  an  ailjoiuing  car,  or  stood  up 
in  the  one  in  question,  ia  guilty  of  contributory  negligence,  as  matter 
of  law;  and,  in  an  action  for  his  death,  caused  by  falling  from  his 
seat  while  the  train  was  in  motion,  it  is  error  to  submit  the  question 
of  contributory  negligence  to  the  jury.     Jackson  v.  CrlFy.  Hi  Colo. 

103,  2(>  Pac.  331. 

12  Baltimore  &  Y.  T.  Uoad  v.  Leonliardt.  C,C>  Md.  70,  5  Atl.  310. 

13  Lapointe  v.  Ylailroad  Co.,  144  Mass.  IS,  10  N.  E.  497.  Nor  is 
standing  in  the  aisle.  Griffin  v.  Railroad  Co.,  63  Hun.  020,  17  N.  Y. 
Supp.  002.  Owing  to  a  snowstorm,  a  street-car  company  used  conches 
on  runners,  kept  for  that  purpose.  A  woman  hailed  one  of  tlu>si> 
coaches,  the  driver  stopped,  and,  owing  to  the  crowded  condition  of 
the  car,  she  was  thrown  out  by  the  sudden  jerk  in  starling.  The 
court  said:  "If  the  female  plaintiff,  when  she  stopped  the  defend- 
ant's omnibus,  and  undertook  to  take  a  place  in  it  as  a  pa<sen-er. 
saw.  or  had  an  opportunity  to  see,  that  there  was  absolutely  no  ruom 
for  her,  and  no  place  in  which  she  could  even  stand  with  reasonable 
security,  it  might  well  be  said  to  be  a  want  of  due  care  to  enter  .-.nd 
attempt  to  ride  in  that  w.y.     But  the  defendant,  on  the  other  han.l. 

(4ii:{). 


§  1G6  CARRIERS  OF  PASSENGERS.  (Ch.  10 

a  girl  18  years  old,  is  taken  suddenly  ill,  and  the  con- 
ductor refuses  lier  request  to  stop  the  car,  so  that  she 
can  o-et  off,  it  is  for  the  jury  to  determine  whether  she 
is  guilty  of  negligence  in  getting  up  and  staggering 
towards  the  car  door,  through  which  she  fell."  But 
one  who  enters  an  elevated  railroad  car  at  a  station, 
and  looks  leisurely  around  without  taking  a  seat,  and 
who  is  thrown  down  by  the  inevitable  jerk  of  the  train 
in  starting,  is  guilty  of  contributory  negligence,  as 
matter  of  law/^ 

§   166.     PASSING  FROM  CAR  TO  CAR  ON  MOVING 

TRAIN. 

As  passenger  coaches  are  constructed  nowadays,  it 
is  not,  as  matter  of  laAv,  negligence  for  a  passenger  to 
oo  from  one  car  to  another  while  the  train  is  in  motion. 
In  a  modern  vestibuled  train,  there  is  no  more  danger 
in  such  an  attempt  than  in  walking  about  in  the  car.' 

by  the  act  of  stopping  the  carriage  at  her  signal,  and  opening  the 
door  for  her  to  enter,  must  l)e  considered,  not  merely  as  giving  her 
an  opportunity  to  judge  wliether  it  would  be  safe  and  convenient  for 
her  to  take  passage,  but  as  inviting  her  to  do  so,  and  assuring  her 
that  her  passage  should  be  a  safe  one,  at  least,  so  far  as  depended 
upon  the  exercise  of  reasonable  and  ordinary  care,  diligence,  and 
sJiill  on  their  part  in  driving  and  managing  their  horses."  It  was 
therefore  held  that  the  question  of  plaintilfs  contributory  negligence 
was  for  the  jury.     Geddes  v.  Railroad  Co.,  103  Mass.  391. 

14  McCann  v.  Railway  Co.  (X.  J.  Err.  &  App.)  34  Atl.  1052. 

15  De  Soucey  v.  Railway  Co.  (Com.  PI.)  i5  N.  Y.  Supp.  108. 

§  160.  1  A  passenger  on  a  vestibuled  train  left  the  car  door  open 
on  going  into  another  car  during  the  niglit  to  see  the  conductor.  On 
his  return,  the  outside  door  of  the  vesubule  was  open,  but  the  car  door 
liad  been  closed.  Misled  by  the  dim  light  reflected  from  the  sleeping 
car  through  the  open  door,  he  mistook  it  for  the  door  leading  into  the 
(424) 


Ch.   10)  CONTRIBUTORY  NEGLIOENOE.  §    ICS 

Even  where  the  train  is  not  vestibuled,  it  has  been 
held  not  to  be  negligence  per  se  (or  a  passenger  to  go 
from  the  smoking  car  to  his  seat  in  another  car  -  or  to 
CO  from  one  car  to  another,  in  search  of  a  seat  or  m 
obedience  to  the  directions  of  the  conductor.  Bnt 
where  the  car  platforms  are  old  fashioned,  and  the 
cars  are  one  moment  close  together,  and  the  next  two 
or  three  feet  apart,  a  different  question  is  presented. 
With  the  train  thus  pitching  and  tossing  while  in  mo- 
tion, an  inexperienced  passenger  is  guilty  of  negli- 

oar  and  by  a  luieh  ot  the  t.aiu  ho  was  tluwn  through  Iho  .loo,-  from 

::■  train.'  He..,  .hat  he  was  no.  .u.„y  ot  -""''''•-^jtn  ^ 
as  matter  ot  law,  hut  that  .he  quos.lou  ^vas  one  ot  tact  tor  the  ju,j. 
Bronson  T.  Oakes,  22  C.  C.  A.  520,  70  l-'eil.  734. 

=  Cos.ikyau  v.  Railroad  Co.,  oS  Hun,  590,  12  X.  1.  Supp.  083.  at- 
Srmed  128  N.  Y.  633,  29  N.  E.  147. 

,  LouisvlUe  &  K.  a  Co.  v.  Bergs  .4dafr  (K.v.l  .«  ..    %  ■  flo,       ^- 
rea.te  &  O.  K.  Co.  v.  Clowes  (Va.)  24  S.  E.  833.     «  he.her  ot  no    .i 
Tateutr  i»  guiiiy  o.  neg.igouoe  iu  ,>ass,„«  trom  one  ,ar  .o  auo  he 

:;:.  :  driu,:ot  water,  whiie  ..,e  .rain  is  , iug  si.wi.v.  ,»  .■,  .,u..  .o  > 

for" .he  jury,  and  the  court  erred  iu  granting  a  uousu.t.  t  ot,  h,  tt  v 
„  ,  way  CO  84  Ua.  687,  11  S.  E.  r,..3.  A  passenger  »•■-«--''; 
train  was  aiiowed  hy  .he  condu..or  .0  leave  one  car,  a  .  g  n^o  an 
other  .0  sell  tickets.  He  had  lolt  his  wilo  >u  one  cat.  -Much  w.is 
Tn  open  one  .he  seats  heing  reached  from  an  ou.sidc  ruon.ug  hoard. 
In,.e.ad  otao  aisle.     The  running  hoard  was  us.d  hy  the  condtjcto 

M  traiuiuen  in  passing  tron e  portion  ot  .he  '-;--»'-- 

Held    that  It  was  not  ncgiigcnce.  as  matter  ol;  law,  toi  .he  passeng.  r 
"     urosl  that  he  also  .ould  use  it  saiViy,  and  to  try  to  do  so  m  re- 

tun    r.o  his  Wire.     .v.,d  supposing  i.  .0  he  safe,  as  i,  ^'-';'  ^»;  ' 

was  „;  negiigonce  ,. it  to  ,o..U  on,  t.n- structures  -     «      »  *; 

track  as  to  eudanjrer  iicrsoiis  -m   ilu-  iuimiu« 

Railway  Co.,  53  Mich.  4:',,  is  N.  W.  ■'>•"•:•>•  •      n  .  e-  V    Tl 

4  Melntvre  v.  Ra  Iroad  Co.  d^i'O  ■^'  '^-   ^-  -^''  ^ 

CO.  ;    Keliy,  92  Ind.  371;    0avis  v.  ICailway  Co.,  09  .x.,s,.  130.  10 

South.  450.  ^^25) 


§  1G6  CARRIERS  OP  PASSENGERS.  (Ch.  lO' 


b 


gence  in  attompting  to  pass,  of  his  own  motion,  from 
one  car  to  another.^  Of  conrse,  in  going  from  one  car 
to  anotlier  of  a  rapidly  moving  train,  merely  for  liis 
own  convenience,  the  passenger  takes  the  risk  of  all 
accident  not  arising  from  any  negligence  of  the  carrier. 
A  passenger  who  collides  with  a  fellow  passenger 
while  crossing  the  platforms  between  the  cars,  and  who 
is  throAvn  from  the  car  bv  the  force  of  the  collision  and 
an  ordinary  Inrch  of  the  train,  cannot  recover  from 
the  company,  since  it  has  been  guilty  of  no  negligence." 
But  a  passenger  going  from  car  to  car  in  search  of  a 
seat  does  not  assume  the  risk  of  a  collision  with  a  loco- 
motive engine  or  another  train.^  It  has,  however,^ 
been  held  that  to  i:)ass  from  one  car  to  another  in  the 
nighttime,  while  the  train  is  under  full  headway,  is. 
negligence,  as  matter  of  law.^      So  a  passenger  who 

B  Cleveland,  C,  C.  A:  I.  R.  Co.  v.  Manson,  :!0  Ohio  St.  451. 

6  Stewart  v.  Railroiid  Co..  !-!(.;  Ma-s.  GU5,  IG  X.  E.  4GG.  So  the  pas- 
senger assumes  the  risk  of  all  ordinary  jerks  of  the  train  inculent 
to  stopping  the  train  at  a  Sitation  which  it  is  approaching.  Choate  v. 
Railway  Co.  (Tex.  Sup.)  .3G  S.  W.  247,  affirming  (Tex.  Civ.  App.)  3.S 
S.  W.  180;    Sickles  v.  Railway  Co.  (Tex.  Civ.  App.)  .35  S.  W.  493. 

7  Dewire  v.  Railroad  Co.,  148  Mass.  343.  19  N.  E.  .523. 

8  Sawtelle  v.  Insurance  Co.,  15  Blatclif.  21(;,  Fed.  Cas.  No.  12,392. 
"The  din  and  clamor  of  the  train,  the  ru^^hing  of  the  wind,  and  dust 
and  smoke,  the  consciousness  that  a  misstep  or  miscalculation  of  dis- 
tances may  be  fatal,  tend  to  confuse  or  excite  the  faculties,  and  dis- 
turb the  judgment;  and,  although  it  is  a  common  practice  thus  ta 
pass  from  car  to  car,  it  ia  rarely  accomplished  without  experiencing 
a  sense  of  relief  when  it  has  been  safely  done.  When  darkness  adds 
another  condition  of  uncertainty  to  the  attempt,  there  can  be  no 
justillcation  of  the  act  in  the  mind  of  any  prudent  man."  Id.  In 
Louisiana,  where  the  supreme  court  passes  on  the  facts  as.  a  jury, 
it  has  been  held  that  stepping  from  one  car  to  another  without  in- 
ducement or  invitation,  or  on  a  necessary  errand,  while  the  train  is  in 

(420) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    l(j<> 

has  gone  from  the  coach  to  the  engine  to  get  a  drink 
of  water  is  guilty  of  contributory  negligence,  as  mat- 
ter of  law,  in  attempting  to  return  to  the  coach  wliile 
the  train  is  on  a  sharp  curve,  going  at  a  rapid  rate  of 
speed.® 

It  is  generally  hazardous  to  pass  from  one  street  car 
to  another,  because  of  the  distance  between  the  car 
phitforms  and  the  manner  in  which  the  cars  are  fasten- 
ed together.  Thus  a  passenger  who  leaves  his  seat  in 
an  open  car,  and  goes  onto  the  running  board,  to  pass 
into  another  car,is  guilty  of  contributory  negligence, as 
matter  of  law,  if  there  was  no  necessity  for  leaving  his 
seat,  and  he  cannot  recover  for  injuries  sustaineil  in  be- 
ing struck  by  an  iron  column  near  the  track;  but  if  he 
desired  to  make  a  change  because  his  seat  was  so 
crowded  as  to  be  uncomfortable,  the  question  is  one  of 

motion,  is  negligence.     Bemiss  v.  Railroad  Co.,  47  La.  Ann.  IGTl,  18 
South.  711. 

»  McDauiel  v.  Railroad  Co.,  00  Ala.  64,  8  South.  41.  If  a  passenger 
on  a  railroad  car  is  guilty  of  negligence,  by  uunecessari'y  exposing 
himself  to  danger,  by  wrestling  or  scuffling  in  the  cars,  or  by  im- 
prudently or  unnecessarily  passing  from  one  car  to  another  -while  the 
train  is  in  motion,  and  receives  an  injury,  and  his  carelea-<noss  and 
Imprudence  has  contributed  in  any  way  to  produce  the  injury,  he 
cannot  recover  for  it.  Galena  &  C.  M,  R.  Co.  v.  Fay,  IG  111.  rm.  In 
an  action  for  the  death  of  a  passenger,  who  was  found  dead  on  the 
track,  it  is  some  evidence  of  negligence  that  he  undertook  to  pass 
through  the  train,  moving  rapidly,  in  the  uiglittime,  unless  it  may 
be  reasonably  inferred  that  he  had  some  excuse  for  so  doing  more 
than  mei-e  restlessness  or  curiosity.  State  v.  Maine  Cent.  R.  Co.,  81 
Me.  84,  16  AU.  368.  A  passenger,  taking  a  train,  who  passes  from 
one  car  to  another,  botli  stationary,  about  six  inches  apart,  is  guilty 
of  contributory  negligence  in  stepjiing  on  the  intervening  buffers,  just 
as  they  separate,  OAving  to  the  starting  of  the  train.  Snowden  v.  Rail- 
.  road,  151  Mass.  220,  24  N.  E.  40. 

(427) 


§  167  CARRIERS  OF  PASSENGERS.  (Ch.  10 

fact  for  tJie  jury.'"  So  a  passenger  on  a  train  consist- 
ing of  an  open  dummy  car  and  a  closed  dummy  car  is 
guilty  of  contributory  negligence,  as  matter  of  law,  in 
attempting  to  step  from  the  running  board  of  tlie  open 
car  to  the  steps  of  the  closed  car  while  in  motion,  where 
the  distance  between  the  two  is  from  two  and  one-half 
to  three  feet,  and  subject  to  sudden  and  material  varia- 
tions by  tJie  motion  of  the  train.''  And  a  custom 
of  passengers  to  pass  from  the  running  board  of  the 
open  car  to  the  steps  of  the  closed  car  does  not  excuse 
a  passenger  in  making  the  attempt,  if  it  is  obviously 


dangerous  to  do  so 


12 


§  167.     RIDING  ON  PLATFORM. 

By  the  weight  of  authority,  it  is  negligence,  as  mat- 
ter of  law,  for  a  passenger  to  be  upon  the  platform  of 
a  rapidly  moving  train,  unless  he  is  compelled  to  as- 
sume such  position  as  the  best  he  could  do  at  the  time, 
acting  as  a  careful  and  prudent  man.'      "The  danger 

10  Coleman  v.  Railroad  Co.,  114  N.  Y.  m\),  21  N.  E.  1064,  reversing 
41  Hun,  3S0. 

11  Hill  V.  Kailrond  Co..  100  Ala.  447.  14  South.  201. 

12  Id.  A  passenger  on  a  train  of  electric  cars  is  not  guilty  of  neg- 
ligence, as  matter  of  law,  in  pas  ing  from  one  car  to  another,  so  as  to 
bar  recovery  for  injuries  sustained  liy  a  shock  of  electricity  received 
on  touching  the  Iron  handles  of  the  platform.  Burt  v.  Railroad  Co., 
83  Wis.  229,  53  N.  W.  447. 

§  167.  1  Worthington  v.  Railroad  Co.,  &4  Vt.  107,  23  Atl.  590; 
Hickey  v.  Railroad  Co.,  14  Allen  (.Mass.)  428;  Herdman  v.  Railroad 
Co.,  62  Hun,  621,  17  N.  Y.  Supp.  198.  Though  a  passenger  on  a 
crowded  excursion  train  may  not  be  guilty  of  negligence  in  going  from 
car  to  car  in  search  of  a  seat  while  the  train  is  in  motion,  yet  it  is 
negligence  for  him  to  remain  on  the  platform  for  several  minutes 
when  there  is  standing  room  inside  the  car,  and  no  necessity  exists 

(428) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    167 

of  staudiiig  on  the  narrow  i)latform  of  a  passenger  oar 
while  the  train  is  moving  with  the  usual  speed  of  rail- 
road trains  is  most  conspicuous.      2so  prudent  man,— 
no  man  ordinarily  mindful  of  his  conduct,  and  of  mat- 
ters about  him, — would  occupy  such  a  position.      The 
greater  the  speed  of  the  train,  the  more  imminent  the 
danger  in  such  a  place.      Thoughtful  people  instinct- 
ively shudder  when  they  see  persons  take  such  risks. 
Curves  are  necessarily  frequent  on  railroads  in  Maine, 
a  fact  well  known  to  all,  and  a  fact  which  makes  rid- 
ing on  the  platform  of  a  car  most  perilous.      The  know- 
infflv  incurring  such  an  imminent  visible  peril — the 
choosing  to  ride  in  such  a  conspicuously  dangerous 
place — must  be  held  by  all  reasonable  people  to  be 
recklessness  in  a  high  degree.     The  danger,  the  chance 
of  injury,  is  visibly  imminent  and  great.      Ko  man  of 
reason  can  fail  to  apprehend  it.      No  prudent  man 
would  fail  to  avoid  it.      There  seems  to  us  no  room  for 
debate  or  (juestion  upon  this  proposition."  -      A  regu- 
lation forbidding  passengers  to  stand  on  the  platform 
of  a  moving  car  is  a  reasonable  and  proper  rule,  and  a 
passenger  who  knowingly  violates  it  does  so  at  his  own 

for  him  to  remain  so  long  on  the  platform;  and  he  cannot  recover  for 
Injuries  sustained  in  being  jolted  from  the  platform  by  the  ordinary 
moiion  of  the  train.     Camden  &  A.  R.  Co.  v.  Hoosey,  99  Pa.  St.  49-J. 

2  Goodwin  V.  Railroad,  84  Me.  203,  :24  Atl.  816.  It  is  immaterial 
that  tlie  day  wa.s  liot;  tliat  tlie  cars  were  dusty,  and  uncomfortably 
crowded;  that  no  trainman  sJiowed  the  passenger  a  seat,  or  advised 
him  whore  he  could  iiud  a  seat;  that  the  conductor  took  his  ticket 
on  the  platform,  ami  made  no  obje«'tion  to  his  stamlins  there;  an<l 
that  the  pas.-enger  did  not  see  the  sign  on  the  car  door  prohibiting 

such  riding. 

(420) 


§  167  CARRIERS  OF  PASSENGERS.  (Cll.  10 

peril,  and  not  at  the  peril  of  the  railroad.'  In  some 
states,  however,  it  is  held  not  to  be  conti-ibutory  negli- 
gence, as  matter  of  law,  for  a  passenger  to  ride  on  the 
platform  of  a  car  on  a  moving  train,  but  the  question 
is  one  of  fact  for  the  jury/ 

Unquestionably,  it  is  the  duty  of  a  passenger  stand- 
ing on  the  platform  of  a  steam-railroad  car  to  go  inside 
when  requested  so  to  do  by  a  person  having  charge  of 
the  train,  if  there  is  standing  room  inside,  although 
there  are  no  vacant  seats.  The  fact  that  the  passenger 
has  a  well-founded  ground  of  complaint  against  the 
railroad  company  for  not  providing  adequate  accom- 
modations for  passengers  does  not  release  him  from  the 
duty  of  leaving  the  platform.^ 

8  McCauley  v.  Railroad  Co.,  93  Ala.  356,  9  South.  611;  Macon  & 
W.  R.  Co.  v.  .Johnson.  38  Ga.  409. 

4  Bonknight  v.  Railroad  Co.,  41  S.  C.  41.5,  19  S.  E.  915;  Zemp  v. 
Railroad  Co.,  9  Rich.  Law  (S.  C.)  84;  Missouri,  K.  &  T.  Ry.  Co.  v. 
Brown  (Tex.  Civ.  App.)  39  S.  W.  326;  Illinois  Cent.  R.  Co.  v.  O'Keefe, 
154  111.  508,  59  N.  E.  606,  reversing  49  111.  App.  320.  In  an  earlier 
Illinois  case,  however,  it  was  held  that  a  passenger  who  voluntarily 
stands  on  the  platform  of  a  car  in  motion,  with  abundant  standing 
room  inside,  is  guilty  of  negligence,  as  matter  of  law,  and  there  can 
be  no  recovery  for  his  death,  caused  by  falling  to  the  ground,  not  in 
consequence  of  a  collision,  or  a  broken  rail,  or  other  fault  of  the  com- 
pany, but  in  the  endeavor  to  secure  a  bank  note  that  the  wind  had 
blown  away.  Quinn  v.  Railroad  Co.,  51  111.  495.  Riding  on  the  plat- 
form of  a  car  will  not  prevent  a  recovery,  as  matter  of  law,  unless  it 
clearly  appears  that  but  for  such  act  the  accident  would  not  have 
happened.  Woods  v.  Southern  Pac.  Co.,  9  Utah,  146,  33  Pac.  628. 
A  soldier  guarding  prisoners  of  war  while  being  transported  on  a 
train,  is  not  chargeable  with  negligence  in  standing  on  the  car  plat- 
form in  the  performance  of  his  duty,  pursuant  to  orders  of  his  su- 
perior officer.     Truex  v.  Railway  Co.,  4  Lans.  (N.  Y.)  198. 

5  Graville  v.  Railroad  Co.,  105  N.  Y.  525,  12  N.  B.  51,  reversing  13 
Daly  (N.  Y.)  32;    Memphis  &  L.  R.  Ry.  Co.  v.  Salinger,  46  Ark.  528; 

(430) 


Ch.    10)  CONTRIBUTORY   XEGLIGENXE.  §    1G7 

Of  course,  a  passenger  is  not,  as  matter  of  law,  guilty 
of  negligence  in  standing  on  the  platform  of  cars  in 
motion  if  there  is  no  room  inside/  One  who  boards 
a  crowded  passenger  car  has  a  right,  in  the  absence  of 
any  warning  not  to  do  so,  to  stand  and  ride  upon  the 
platform  if  there  is  no  room  within  the  car,  and  is 
entitled  to  the  same  care  and  consideration  as  any 
other  passenger."  Neither  does  a  passenger  on  a  train 
owe  a  duty  to  the  company  to  push  and  crowd  his  way, 
in  order  to  get  an  advantage  over  other  passengers  in 
securing  a  place  within  the  cars;  and  it  does  not  fol- 
low, as  matter  of  law,  that  he  will  be  guilty  of  negli- 
gence in  not  so  doing.  Xor  will  his  duty  to  the  com- 
pany require  that  he  shall  wholly  disregard  the  usual 
41  nd  ordinary  courtesies  and  amenities  of  life.  In  fact, 
it  is  not  necessarily  and  as  matter  of  law  negligence 

Fisher  v.  Railroad  Co.,  39  AV.  Va.  306,  19  S.  E.  578;  s.  c.  (W.  Va.) 
^24:  S.  E.  570;  Louisville  &  N.  R.  Co.  v.  Biscli,  120  Ind.  549,  22  N.  E. 
<;G2.  a  coudui.'tor  performs  his  duty  when  he  asks  a  passenger  rid- 
ing on  the  car  platform  to  come  inside,  and,  on  the  passenger's  rofusal 
to  obey,  the  conductor  is  not  bound  to  stop  the  train,  and  put  him  off. 
Fisher  v.  Railroad  Co.  (AY.  Ya.)  24  S.  E.  570. 

6  Willis  V.  Railroad  Co.,  34  N.  Y.  670,  affirming  32  Barb.  (N.  Y.) 
398;  Werle  v.  Railroad  Co.,  98  N.  Y.  6.50;  Lafayette  &  I.  R.  Co.  v. 
Sims,  27  Ind.  59;  Chicago  &  A.  R.  Co.  v.  Fisher,  141  111.  614,  627,  31 
N.  E.  406,  38  111.  App.  33.  It  is  not  contributory  negligenci',  as  mat- 
ter of  law,  for  a  passenger  to  ride  on  the  car  platform,  if  the  cars 
are  crowded,  and  there  are  no  vacant  seats  inside.  Chesapeake  &  O. 
R.  Co.  V.  Lang's  Adm'r  (Ky.)  38  S.  W.  503.  It  is  not  negligence,  as 
matter  of  laAv,  for  a  person  having  a  ticket  good  only  on  a  certain 
train  to  get  on  the  platform  of  a  car,  where  he  did  not  know,  when 
he  came  to  take  the  train,  that  it  was  so  crowded  that  he  could  not 
get  inside  the  car.  Chicago  &  A.  R.  Co.  v.  Dumser,  161  111.  190,  43 
^^  E.  698,  affirming  60  111.  App.  93. 

7  j,yuQ  V.  Pacitic  Co.,  103  ^ul.  7,  30  Pac.  lOlS. 

(4:>.l) 


§  167  CARRIERS  OP  PASSENGERS.  (Ch.  10 

to  stand  aside  and  allow  ladies  to  occupy  the  safest 
and  most  desirable  positions  in  a  public  conveyance.* 
So,  though  a  number  of  passengers  leave  a  crowded 
train  at  an  intermediate  station,  the  question  whether 
plaintiff  is  guilty  of  contributory  negligence  in  contin- 
uing to  ride  on  the  platform,  instead  of  searching  for  a 
place  inside  of  some  other  car,  is  for  the  jury,  where 
it  does  not  appear  that  he  might  have  gotten  a  safer 
or  better  position,  or  that  he  received  any  notice  from 
the  conductor,  or  any  one  else,  that  he  might  find  room 
in  some  other  car.^ 

By  the  weight  of  authority,  it  is  negligence,  as  mat- 
ter of  law,  for  a  passenger  to  leave  a  car,  and  stand  on 
the  platform,  while  the  train  is  rapidly  moving,  in 
order  to  be  ready  to  alight  when  it  shall  stop  at  his 
station,  which  it  is  approaching,  where  his  act  is  in 
violation  of  notices  posted  in  the  car,  and  where  there 
is  no  necessity  for  him  to  do  so.^°      But  where  it  is  cus- 

8  Chicago  &  A.  R.  Co.  v.  Fi.-her,  141  111.  G14,  .">1  N.  E.  406.  But  a 
pa.s.senger  on  a  vestibuled  train,  about  to  enter  a  car,  lias  been  held 
guilty  of  negligence  in  stepping  backward,  to  permit  a  lady  passenger 
to  enter,  without  looking  to  see  whether  there  is  an  opening  between 
the  cars  into  which  he  steps.  Louisville,  N.  A.  &  C.  Ky.  Co.  v.  Stout. 
CO  111.  App.  298. 

9  Chicago  &  A.  R.  Co.  v.  Fisher,  141  111.  614.  31  N.  E.  406,  38  111. 
App.  33.  A  different  ruling  was  made  in  Chicago  &  X.  W.  R.  Co.  v. 
Carroll,  5  111.  App.  201,  which  held  that  where  a  number  of  passengei-s 
on  a  crowded  train  leave  at  an  intermediate  station,  it  is  the  duty  of  a 
passenger  riding  on  the  platform  to  ascertain  whether  there  is  room 
inside;  and  if  he  fails  to  do  so,  and  continues  riding  on  the  platform, 
when  there  is  in  fact  room  inside,  he  cannot  recover  for  injuries  sus- 
tained in  being  jolted  off  the  car. 

10  Scheiber  v.  Railway  Co.,  61  Minn.  499,  63  N.  W.  1034;  Patersou 
V.  Railway  Co.,  85  Ga.  653,  11  S.  E.  872;    Alabama  G.  S.  R.  Co.  v. 

(432) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    167 

tomarv  for  a  traiu  to  merely  slow  down  at  a  station, 
instead  of  eoniin,u  to  a  full  sto]),  a  passeujier  is  not 
guilty  of  negligenfe  in  going  on  tlie  platform  as  the 
train  is  approaching  the  station. ^^  So,  a  passengei- 
who,  at  the  invitation  of  a  brakeman,  takes  a  position 
on  the  car  platform,  to  be  in  immediate  readiness  to 
aliiiht  when  the  train  comes  to  a  stop,  is  not  guilty  of 
contributory  negligence  as  matter  of  law.  The  plat- 
form is  not  such  a  position  of  obvious  danger  that  a 
reasonable  man  would  not  have  obeyed  the  servant,  or 
accepted  the  invitation. ^^ 

As  a  general  proposition,  a  passenger  is  not  guilty 
of  contributory  negligence  in  standing  on  the  platform 
of  a  car  at  rest,  and  his  so  standing  there  will  not 

Hawk.  72  Ala.  112;  Bon  v.  As^suiaiK-e  Co.,  5(J  Iowa.  ()(U.  10  N.  W. 
2-_'5;  Jammison  v.  Railway  Co.,  92  Va.  827,  2.3  S.  E.  7.jS;  Fletcher 
V.  Commissioner  of  Railways,  7  New  S(Mitli  Wales,  251.  The  mere 
announcement  of  a  station  by  a  conductor,  and  a  remark  to  a  pas- 
senger, '"I  wi.sh  I  was  as  near  home  as  you  are,"  do  not  justify  a  jias- 
senger  in  going  on  the  car  platform;  and  he  cannot  recover  for  inju- 
ries sastained  in  being  jolted  off  the  platform.  Klitch  v.  Railroad,  7(! 
Ga.  333.  A  passenger  wlio  is  a.sleep  when  his  station  is  reached  is 
guilty  of  negligence  in  leaving  the  car  after  it  has  attained  a  rapid 
speed,  and  in  going  on  the  car  steps,  with  the  intention  of  aliglitiug, 
if  the  speed  should  slacken,  though  he  was  advised  by  the  brakemau 
to  get  off  quickly;  and  lie  cannot  recover  for  injuries  sustained  in 
being  thrown  from  the  slcjis  l)y  a  jerk  of  the  traiu.  Liudsej^  v.  Rail- 
road Co.,  64  Iowa,  407,  20  N.  W.  737.  But  in  Schultze  v.  Railway 
Co.,  32  Mo.  App.  438,  it  was  held  that,  after  the  whistle  has  sounded, 
an  1  the  name  of  a  pas-senger's  station  has  been  calle  1,  a  i)as-enger 
is  not  guilty  of  contributory  negligence,  as  matter  of  law.  in  going  on 
till'  'Jir  platform,  and  in  ste])ping  on  tlie  <"ir  steps  as  llie  train  is  ap- 
proaching the  station  platform. 

n  Brashear  v.  Raihi  ad  Co.,  47  La.  Ann.  7;'.r>,  17  Snutli.  200. 

1-' Baltimore  &:  O.  R.  Co.  v.  Meyers,  li»  C.  C.  A.  -Is:..  ti2  F.-d.  :;07; 
Kentucky  A:  I.  Bridge  Co.  v.  Quinkert,  2  lud.  App.  2  11.  2S  .\.  i:.  ;i:{S. 
V.  1  i-::t.c.m:."as.— 28  0138) 


§107  CARRIERS   OF  PASSENGERS.  (Ch«    10 

defeat  the  right  to  recover  for  injuries  sustained  in  a 
collision  Avith  another  car/^  But  a  passenger  who 
leaves  his  seat  in  a  car  on  a  freight  train  while  at  a 
station,  and  stands  on  the  car  platform,  without  even 
taking  the  simple  precaution  of  supporting  himself  b}^ 
holding  to  the  railing,  or  anything  else,  is  guilty  of 
negligence,  as  matter  of  law,  which  will  preclude  a 
recoverw  for  injuries  sustained  in  being  jerked  from  the 
platform  h\  the  sudden  starting  of  the  train."  So  a 
passenger  who  leaves  his  seat  in  an  ordinary  car,  and 
goes  on  the  platform,  knowing  that  the  train  is  about 
to  start,  and  who  is  thrown  down  by  the  starting  of  the 
engine,  Avith  no  unusual  or  unnecessary  jerk,  is  guilty 
of  negligence,  and  cannot  recover  from  the  company 
for  the  injuries  sustained.^^ 

13  Walter  v.  Railroad  Co.,  39  Iowa.  38;  Collius  v.  Railroad  Co.,  12 
Barb.  (X.  Y.)  402.  AVhere  a  train  has  been  .s.ojped  between  stations, 
to  put  off  trami  s,  a  passt»nger  is  not  gudty  of  contributory  negligence, 
as  matter  of  law,  in  going  on  the  ca'r  platfi  rm  to  see  Avhat  is  going 
on.  and  is  not  thereby  precluded  from  ;;ecovering  for  injuries  sus- 
tained by  the  accidental  discharge  of  the  conductor's  pistol  as  he 
swung  hiuLself  on  the  car  after  the  train  bad  started.  Gerstle  v. 
Railway  Co.,  23  Mo.  App.  361.  "Whether  or  not  it  is  negligence  for  a 
passenger  to  ride  on  the  platfonn  of  a  car  as  the  train  is  leaving  the 
station,  and  before  it  has  attained  full  speed,  is  for  the  jury.  Good- 
rich V.  Railroad  Co..  29  Hun.  ."iO. 

li  Malcom  v.  Railroad  Co..  KX!  N.  E.  va,  11  S.  E.  187;  Smotherman 
V.  Railway  Co.,  29  Mo.  App.  2(;.j.  A  passenger  on  a  freight  train, 
which,  on  a  dark  night,  stops  on  a  liigh  trestle  near  its  destination, 
pursuant  to  a  signal,  is  guilty  of  negligence,  as  matter  of  law,  in  go- 
ing on  the  platform  of  the  caboose  car,  Avithout  making  inquiry  of  the 
conductor  as  to  whether  it  is  prudent,  or  as  to  the  length  of  time  the 
train  will  stop.     Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  Coultas,  67  111.  398. 

15  Torrey  v.  Railroad,  147  Alass.  412,  18  N.  E.  213.  A  mother,  who, 
Willi  a  small  child,  not  three  years  old,  takes  passage  on  a  mixed  pas- 

(434) 


Ch.    lOj  CONTRIBUTORY   XEGLIGE.NXE.  §    108 


§   168.      SAME— STREET  CAR. 

It  is  not  contribiitoi y  iie<!,liiien(e,  as  matter  of  law, 
for  a  passeiiiier  to  stand  ou  the  platform  of  a  crowded 
street  car,  but  the  question  is  one  of  fact  for  the  jury.^ 
Ilules  prescribed  for  the  observance  of  passengers  on 
steam  railroads,  wliich  run  their  trains  at  great'  speed, 
are  very  different  from  those  on  street  railways.  In 
al  senee  of  express  rules,  every  passenger  knows  that 
Aviiat  miglit  be  consisten^;  with  safety  on  one  would  be 
extremely  hazardous  on  the  other.-  The  seats  inside 
the  car  are  not  the  only  places  where  the  managers  of 
the  car  expect  passengers  to  remain;  but  it  is  notorious 

seuger  and  freight  train,  is  guilty  of  ne.srli.irence  in  perniittinfr  the 
cliild  to  go  ou  tlie  platform  of  a  car  while  the  train  is  stopping  at  a 
station,  and  the  locomotive  engagid  in  switching  cars  ou  a  side  track; 
aud,  where  the  child  is  throAvu  from  the  platform  by  a  .iar  of  no  un- 
i;sual  violence,  caused  by  the  coupling  of  freight  c-ars  to  tlie  traiu,  the 
uu.ther  cannot  recover  for  injuries  sustained  in  thrusting  her  arm  un- 
der the  wheels  to  save  her  child  from  beiug  run  over.  De  Mahy  v. 
Steamship  Go.,  4'>  La.  Ann.  1329,  14  South.  01. 

§  liJS.  1  Meesel  v.  Kailroa  t  Co..  8  Allen  (Mass.)  23.5;  Germantown 
P.'  Ky.  Co.  V.  Walling.  U7  Ta.  St.  .j.").  Not  negligence,  in  absence  of 
notice  to  the  contrary.  Augusta  cV:  S.  K.  Co.  v.  lienz,  ."(5  (in.  12(J. 
It  is  not  contributory  negligence  per  se  for  a  passenger  to  ride  on  the 
lla'.f.rm  of  an  electric  strtet-rai'.way  car.  Marlon  St.  K.  Co.  v. 
Shaffer,  it  Iii<l.  App.  4S(),  3(j  X.  K.  Mil.  It  is  ncit  negligence  per  se  for 
a  1  asseuger  to  ride  on  the  platfoim  of  a  crowde  1  el(<-t;ic  car.  10a>-t 
O  aha  St.  R.  Co.  v.  Godola  (Neb.)  70  N.  AV.  4'.tl.  Where  an  electric 
car  is  too  crowded  to  permit  a  passenger  to  enter,  he  is  not,  as  matter 
of  law.  guilty  of  contributory  mgigeuce  in  standing  on  the  rear  plat- 
form near  the  ^,;eps,  holding  to  the  rail  behind  liini  wit.i  ene  li;in;l.— 
a  lositiou  the  conductor  told  him  to  take.  Itebcr  v.  '1  la  lion  ("n.  (Pa. 
Si  p.)  -.W  Atl.  24.-. 

-  <;ermant(i\vn  1'.  Ky.  Co.  v.  Walliug,  !i7  I'a.  St.  o.j. 


§  1G8  CARRIERS  OF  PASSENGERS.  (Cll.  lO 

that  tliey  stop  liabitnally  to  receive  passengers  to  stand 
inside  till  tlie  car  is  fnll,  and  tlien  to  stand  npon  the 
platforms  till  they  are  full,  and  coutiune  to  stop  and 
receive  them  even  after  there  is  no  place  for  them  to 
stand,  except  on  the  steps  of  the  platform.^  A  passen- 
ger on  an  elevated  train  is  not  guilty  of  negligence,  as 
matter  of  law,  in  riding  on  the  platform  of  an  elevated 
car,  though  when  he  gets  on  lie  knows  that  the  car  and 
platform  are  crowded,* 

Even  Tvhen  there  is  room  inside,  standing  on  the  rear 
platform  of  a  moving  street  car  is  not,  under  ordinary 
circumstances,  contributory  negligence  per  se  on  the 
part  of  a  passenger,  at  least  in  the  absence  of  any 
published  rule  of  the  carrier  forbidding  it.^      Neither 

3  Meesel  v.  Railroad  Co.,  8  AlUn  (Mass.)  235. 

4  Graham  v.  Kaihvay  Co..  14!»  X.  Y.  38().  43  N.  E.  917,  reversing  8 
Misc.  Rep.  30.j.  2H  N.  Y.  Sni)i).  7.39;  Merwiu  v.  Railroad  Co..  48  Hun. 
(108.  1  X.  Y.  Supp.  207,  affirmed,  113  X.  Y.  (>o9.  21  N.  E.  41.5;  Suther- 
land V.  Insurance  Co.,  87  Iowa,  .505,  54  N.  W.  453.  Voluntarily  ridiny 
on  the  rear  jjlalform  of  a  croAvded  .street  car  is  not  negligence  per  .se. 
Metropolitan  R.  Co.  v.  Snashall,  3  App.  D.  C.  420.  This  case  must 
be  taken  to  overrule  Andrews  v.  Raih'cad  Co.;  2  Macliey  (D.  C.)  137, 
liolding  that  a  passenger  who  rides  on  the  rear  platform  of  a  street  car 
is  guilty  of  contributory  negligence,  as  matter  of  law,  if  there  is 
stamling  room  inside,  where  there  are  pendent  straps,  which  he  may 
hold  while  standing.  It  is  not.  as  matter  of  law,  contributory  negli- 
gence to  stand  on  the  back  platform  of  a  street  car,  especially  where 
all  the  seats  are  filled.  I'endergast  v.  Railway  Co.,  10  App.  Div.  207, 
41  X.  Y.  Supp.  927. 

^  Matz  Y.  Railway  Co.,  .52  Minn.  159,  53  X.  W.  1071;  Fleck  v.  Rail- 
way Co.,  l.">4  Mass.  480.  The  fact  that  a  pas.senger  on  a  street  car 
stands  on  the  platform,  ^^iien  there  is  opportunity  to  take  a  seat  in- 
side, is  no  defense  in  an  action  against  the  owner  of  a  truck,  which 
ct)llided  with  the  street  car.  injuring  the  passenger.  Connolly  v.  Ice 
Co.,  114  X.  Y.  104,  21  X.  E.  101. 
(43G) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    1^9 

does  the  omission  of  the  ])a8senoer  to  take  liohl  of  the 
rail  on  the  platform,  of  itsi'lf,  amount  to  contributory 
negiip,ence;  nor,  in  view  of  the  connnon  experience  and 
practice,  can  it  be  said,  as  matter  of  law,  that  the  two 
facts  coni?i>iued  constitute  negli«>ence.  It  is  a  question 
for  the  jury.**  The  existence  of  snow  and  ice  upon  the 
platform  is  not  necessarily  such  an  element  of  dano-er 
as  to  be  conclusive  proof  of  neoli<ience  on  the  part  of 
one  Avho,  with  knowledge,  undertakes  to  stand  there 
for  a  moment  or  two,  in  expectation  of  the  car's  stop- 
ping to  let  him  get  off.'  So  knowledge  by  the  passen- 
ger that  an  electric  car  is  approaching  a  curve  does  not 
make  his  standing  on  the  platform  contributory  negli- 
gence, as  matter  of  laAv,  since  he  has  a  right  to  assume 
that  the  car  will  not  round  the  curve  at  a  dangerous 
rate  of  speed.** 

§  169.     SAI.IE— FRONT   PLATFORM    OF    STREET  CAR. 

It  is  not  negligence  per  se  for  a  passenger  to  ride  on 
the  front  platform  of  a  street  car,  tho\igli  there  is  room 
inside,  where  the  use  of  the  platform  is  permitted  by 
the  company  without  objection.^      Certainly,  if  the  car 

6  M;itz  V.  Kailwiiy  Co.,  52  Minn.  loO,  53  N.  W.  1071;  Fleck  v.  Rail- 
way Co.,  i:!4  Mass.  480;  Giuua  v.  Itailioacl  Co.,  G7  X.  Y.  y.H\.  iitWiin- 
inj;  8  Hun,  4!)4. 

7  Fleck  V.  Railway  Co.,  i:U  INIass.  480. 

8  Bloudel  V.  Railway  Co.  (Minn.)  us  X.  \V.  1070. 

§  1<;'.|.  1  Ipliaiii  V.  Itailway  Co..  8.-.  Midi.  V2.  AS  X.  W.  190;  Ma- 
jriiire  V.  Kaili-oad  Co.,  11.".  Mass.  -j:'/.);  Rums  v.  Railway  Co..  .'.0  .Mo. 
i:«i:  .\oIan  v.  Railroad  Co..  M  X.  V.  C.".;  llaikMK  ami)  v.  Railroad  Co., 
1  Sweeupy  (X.  Y.)  4!t(i;  Tat'l  v.  Railroad  Co..  14  .Misc.  Rep.  .■'.Oi).  :{.^> 
X.  Y.  Supp.  1(142;    .Sceliy:  v.  Railway  Co.,  18  .Misc.  Rep.  as:;.  41  X. 

(437) 


§    IG'J  CARRIERS   OF  PASSENGERS.  (C'h.    10 

is  crowded,  the  passeno-er  oannot  be  blamed  for  riding 
on  the  front  platform.-  It  has  even  been  held  that 
knowledge  hj  a  passenger  of  a  rule  of  the  company 
prohibiting  passengers  from  standing  on  the  front 
platform  does  not  make  his  standing  there  negligence, 

Y.  Supp.  656.  It  is  not  negligence  per  se  for  a  passenger  to  ride  on 
tlie  front  platform  of  a  street  car,  though  there  are  vacant  seats  in- 
side. Hastings  v.  Railroad  Co.,  7  App.  Div.  312,  40  N.  Y.  Supp.  [)?.. 
It  is  not  negligence,  as  matter  of  law,  for  a  passenger  to  ride  on  the 
front  platform  of  an  electric  car,  in  the  absence  of  a  rule  forbidding 
It.  Bailey  v.  Traction  Co.  (Wash.)  47  Pac.  241.  It  is  not  neghgente 
per  se  for  a  passenger  to  stand  on  the  front  platform  of  the  trail  car 
in  a  moving  cable  train,  in  the  absence  of  any  rule  of  the  company 
against  it,  where  it  has  been  customary  for  passengers  to  occupy  that 
position.  Muldoon  v.  Railway  Co.,  7  "Wash.  .528,  3.")  Pac.  422.  In 
an  earlier  New  York  case,  however,  it  was  held  to  be  negligence,  as 
matter  of  law,  for  a  passenger  to  get  on  a  street  car  so  crowded  that 
there  is  liarely  room  for  him  to  stand  on  the  front  platform.  Tregear 
V.  Railroad  Co.,  14  Abb.  Prac.  (N.  S.)  49.  It  is  for  the  jury  to  say 
whether  a  passenger  on  a  street  car  propelled  by  electricity  is  guilty 
of  contributory  negligence  in  standing  on  the  iilatform,  where  ther  > 
are  vacant  seats  in  the  car.  and  their  finding  that  he  was  will  not  be 
disturbed  by  the  court.  Beal  v.  Railway  Co.,  157  ilass.  444,  32  N.  E. 
653. 

2  Archer  v.  Railway  Co.,  87  Mich.  101,  49  X.  W.  488;  West  Phila- 
delphia P.  Ry.  Co.  V.  Gallagher.  108  Pa.  St.  524.  A  passenger  who 
cannot  get  on  the  rear  platform  of  a  street  car  owing  to  its.  crowded 
condition  is  justified  in  getting  on  the  front  platform,  and  remaining 
there,  where  the  car  "appeared"  to  be  full  inside.  He  is  justified  in 
acting  on  appearances.  Highland  Ave.  &  B.  R.  Co.  v.  Donovan,  94 
Ala.  290,  10  South.  139.  A  boy  passenger  is  nr)t  guilty  of  negligence, 
as  matter  of  law,  in  riding  on  the  front  platform  of  a  crowded  street 
car,  where  he  has  been  compelled  by  the  conductor  to  give  up  his 
seat,  and  to  stand  on  the  platform.  Sheridan  v.  Railroad  Co.,  30 
N.  Y.  39.  A  passenger  is  not  guilty  of  negligence,  as  matter  of  law. 
in  surrendering  his  seat  to  his  wife,  and  in  standing  on  the  front 
platform.— the  orly  plaie  Avhere  he  can  be  accommodated.  I.ehr  v. 
Railroad  Co.,  118  N.  Y.  550,  23  N.  E.  889.  It  is  not  negligence  per 
(488) 


Ch.   10)  CONTRIBUTORY  NEGLIGENCE.  §    169 

as  matter  of  law,  but  it  is  a  question  of  fart  for  the 
jury,  where  the  ofmductor  accepted  his  fare  without 
objection,  and  there  is  evidence  that  such  a  position  is 
not  obviously  danj>erons.^  But  a  contrary  ruliu''  has 
been  made  in  Maryland.* 

9. 

Of  course,  circumstances  may  exist  which  will  ren- 
der ridinfj;  on  the  front  platform  nej^lij^ence  per  se. 
Thus,  where  there  is  room  inside,  it  is  nHj;li«>ence,  as 
matter  of  hnv,  for  a  passen<:,er  to  continue  to  ride  on 
the  front  platform,-  after  he  has  been  notified  by  the 
driver  that  it  is  unsafe  and  aj;ainst  the  company's 
rules. ^      So  it  is  contributory  negligence,  as  matter  of 

se  for  a  passenger  on  a  motor  tar  to  staud  ou  the  front  platform, 
holdiufi  with  both  hands  onto  the  iron  rod  behind  him,  while  the 
car  i.s  going  rapidly  over  a  toad  with  eurves;  he  having  been  directed 
by  the  conductor  to  stand  there  while  smoking.  Francisco  v.  Kail- 
road  Co.,  88  Hun,  4U4,  34  N.  Y.  Supp.  So!),  distinguishing  s.  c.  78 
Hun,  13,  2i)  N.  Y.  Supp.  247.  A  passenger  Avho.  in  the  nighttime, 
boards  a  street  car  in  which  there  is  no  conductor,  is  not  guilty  of 
contributory  negligence,  as  matter  of  law,  in  wallving  to  the  front 
platform,  to  ask  the  driver  as  to  the  destination  of  the  car.  and  is  not 
thereby  debarred  from  recovering  for  injuries  sustained  by  its  de- 
railment.    Farrel  v.  Railroad  Co.,  ol  Hun,  ()40.  4  X.  Y'.  Supp.  .7.)7. 

3  Iligliland  Ave.  &  B.  K.  Co.  v.  Donovan.  i)4  Ala.  2!>9.  lU  South.  13;>. 

*  Baltimore  &  Y.  Turnpike  K<iad  v.  Cason.  72  Md.  .•'.77.  20  Atl.  113. 
A  rule  of  a  street-r;iilw.iy  (ompany  prohibiting  passengers  from  rid- 
ing on  the  front  platform  of  a  street  car  is  a  reasonable  regulation. 
Wills  V.  Railroad  Co..  121)  Mnss.  3r>l. 

5  Wills  V.  Railroad  Co.,  121)  Mass.  3r>l.  A  passcugi-r  who.  on  a 
cold,  snowy  night,  when  the  tracks  are  icy.  stands  ou  the  front  plat- 
form of  a  street  car.  in  which  there  are  vacant  seats,  is  guilty  of  con- 
tributory negligence,  as  matter  of  law.  Bradley  v.  Railroad  Co.,  Ou 
Hun,  419,  .■>.")  X.  Y.  SuiM'-  ■'l'^-  -^  jiassenger  who  stands  on  the  very 
et\}H^  of  a  crowded  sfr;'rt-iar  idalform.  without  holding  onto  any- 
thing, is  guilty  of  neg'ig  nee.  as  matter  of  law.  Ward  v.  Itai'.road 
Co..  33  N.  Y.  Super.  Ct.  .•;:)2. 

(43D) 


§  169  CARRIERS  OF  PASSEXGERS.  (Ch.  10 

law,  for  a  passenji-  r  to  ride  on  the  driving  bar  of  a 
street  car, — a  thin  iron  rail,  not  exceeding  an  inch  in 
thicliuess, — even  at  the  driver's  invitation,  if  there  is 
room  inside. **  So  a  passenger  on  a  horse  car,  who, 
without  invitation,  when  there  is  plenty  of  room  inside, 
goes  on  the  front  platform,  which  is  uninclosed,  and 
there  occupies  the  driver's  stool,  which  is  high,  and 
without  arms  or  other  protection,  is  guilty  of  negli- 
gence, as  matter  of  law;  and  there  can  be  no  recovery 
for  his  death,  caused  by  his  being  thrown  from  his  seat 
while  the  car  was  being  rapidly  driven  onto  a  switch/ 
So,  while,  as  a  general  proposition,  it  is  not  negligence, 
as  matter  of  law,  for  a  passenger  to  ride  on  the  front 
platform  of  a  street-railway  car,  yet  a  passenger  who 
voluntarily  so  rides  assumes  the  usual  and  ordinary 
dangers  of  his  position.  He  is  compelled  to  stand, 
and  is  not  protected  from  the  jolts  and  sudden  move- 
ments of  the  car,  except  by  the  use  of  his  e3'es  and 
hands.  Hence  a  passenger  injured  by  falling  from 
the  front  platform  of  a  street  car  cannot  recover  merely 
on  i^roof  that  the  driver  whipped  his  horses,  and  that 
they  made  a  sudden  plunge,  wliich  caused  the  car  to 
lurch.  The  driver  has  to  use  his  whip,  and  it  is  not 
negligence  for  him  to  do  so,  any  more  than  it  would 
be  on  the  part  of  a  driver  of  any  other  vehicle.^ 

6  DoM-uey  v.  Heudrie,  4G  Micli.  4U8,  9  N.  W.  S28. 

7  .Manu  V.  Tract iou  Co.,  175  Pa.  St.  122,  34  Atl.  572. 

8  Cassidy  v.  Railroad  Co.,  9  Misc.  Rep.  275,  29  X.  Y.  Supp.  724. 

(440) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    170' 


§  170.     RIDING    ON    FOOTBOARD  OR    STEPS  OF  CAR. 

I\idiii<i  ou  the  footboard  of  an  open  street  rar,^  or  on 
the  steps  of  a  tdosed  car,-  is  not  iiejili»>euce,  as  matter 
of  law,  where  the  ear  is  so  crowded  that  there  is  no 
room  either  in  the  car  or  on  the  phitform.  No  differ- 
ence exists  in  this  respect  between  electric  cars  and 

§  170.  1  Topeka  City  Ry.  Co.  v.  Higgs.  .'iS  Kan.  375,  IG  Pac.  GG7;. 
Bruno  v.  Railroad  Co..  .")  ;Misf.  Rep.  327,  25  X.  Y.  Snpp.  r)07;  Wood  v. 
Railroad  Co..  5  App.  Div."  492.  38  X.  Y.  Snpp.  1077;  City  Ry.  Co.  v. 
Lee.  r>0  X.  J.  Law,  43.").  14  Atl.  883;  West  Chicago  St.  R.  Co.  v.  Mc- 
Nulty,  G4  111.  App.  .")40.  It  is  not  negligence,  as  matter  of  law,  for 
a  passenger  to  ride  on  the  footboard  of  a  crowded  street  car;  and, 
where  he  is  struck  by  a  trolley  pole  in  clo.se  proximity  to  the  track, 
while  reaching  into  his  pocket  to  get  his  fare,  the  company  will  be 
liable  for  the  injuries.  Elliott  v.  Railway  Co..  18  R.  I.  707.  28  Atl. 
338,  31  Atl.  G94.  A  passenger  on  a  vehicle  running  in  a  highway  for 
the  carriage  of  passengers  has  a  right  to  assume  that  those  parts  of 
the  vehicle  prepared  for  the  use  of  passengers,  and  destined  to  receive 
them  while  in  transit,  are  suitable  and  safe  for  the  purpose,  and  that 
the  care  of  the  driver  will  avoid  any  special  risks  which  attach  to- 
the  particular  position.  Hence,  whore  a  stage  sleigh  is  in-ovided 
with  wide  footboards  or  guards,  on  the  .sides  of  which  passengers 
usually  ride  when  the  seats  are  occupied,  a  passenger  so  riding  is  not 
chargeable  with  contrilnitory  negligence,  as  matter  of  law.  Spoouei" 
v.  Railroad  Co.,  54  X.  Y.  230,  reversing  30  Barb.  (X.  Y.)  217,  31  Barb.. 
(X.  Y.)  419. 

2  Clark  v.  Railway  Co.,  30  X.  Y.  13.").  affirming  32  Barb.  (N  Y,> 
<)-")7;  Saltzuian  v.  Railroad  Co.,  73  Ilun.  .")07.  20  X.  Y.  Supp.  311; 
HueLsenkamp  v.  Railway  Co.,  37  Mo.  't'.iS.  dverrnling  34  Mo.  45;  Pray 
v.  Railway  Co.,  44  Xeb.  107.  02  X.  W.  447.  It  is  not  negligence,  as 
matter  of  law,  for*  a  passenger  to  stand  on  the  stej)  of  a  car,  outside 
of  the  gate  placed  between  the  step  and  the  car  platform,  where  he 
does  so  by  direetion  of  the  driver,  and  because  the  car  is  so  crowded 
that  there  is  no  room  in  the  c.Mr  or  on  the  iilatform.  Seymour  v. 
Railway  Co.,  114  Mo.  200,  21  S.  ^^■.  7:;9. 

(441) 


§  170  CARRIERS  OF  PASSENGERS.  (Ch.  10 

horse  cars.'  So,  a  passenger  who  has  requested  a 
street  car  to  be  stopped  is  not  guilty  of  contribntoi-y 
negligence,  as  matter  of  law,  in  getting  on  the  lower 
step  of  the  car,  to  be  in  position  to  alight  when  it  does 
stoi)/  It  has  even  been  held  that  riding  on  the  foot- 
board or  car  steps  is  not  negligence  per  se,  without 
reference  to  the  question  whether  there  is  room  in  the 
car;  ^   but  there  are  authorities  to  the  contrary. °      A 

3  Wilde  V.  Railroad  Co.,  103  Mass.  538.  40  N.  E.  8.51;  McGratli  v. 
Eailroad  Co.,  ST  Hun.  310.  34  N.  Y.  Supp.  3(r.. 

■i  Bowie  V.  Railway  Co.,  09  Miss.  190.  10  South.  r>74;  Nichols  v.  Rail- 
road Co.,  38  N.  Y.  131.  For  a  passenger  on  a  street  car,  after  sig- 
nalinj;  the  car  to  stop,  to  walk  to  the  place  from  where  thej^  expect 
to  alight,  and  there  stand,  waiting  for  the  car  to  stop,  is  so  common 
that  such  conduct  cannot  be  said  to  be  lack  of  ordinary  care.  North 
Chicago  St.  R.  Co.  v.  Southwick,»G6  111.  App.  241.  The  question  of 
the  negligence  of  a  passenger  on  an  electric  street  car,  in  leaving  his 
seat,  and  stepping  onto  the  footboard,  whi!e  the  car  is  still  in  motion, 
is  one  of  fact  for  the  jury.  Denver  Tramway  Co.  v.  Reid,  22  Colo. 
349,  45  Pac.  378. 

5  Geitz  V.  Railway  Co.,  72  Wis.  307.  39  N.  W.  800;  Schwartz  v.  Rail- 
way Co.,  8  Ohio  Cir.  Ct.  484.  The  jury  is  justiiied  in  tindiug  a  pas- 
senger guilty  of  contributory  negligence  in  standing  on  the  running 
board  of  an  open  street  car  when  there  is  room  inside.  Schoenfeld 
T.  Railway  Co..  74  Wis.  433,  43  N.  W.  102. 

6  Aikin  v.  Railroad  Co..  142  Pa.  St.  47,  21  Atl.  781;  Ashbrook  v. 
Railroad  Co.,  18  Mo.  .\pp.  290.  It  is  negligenc3  for  a  passenger  on 
a  street  car  to  ride  on  the  lower  car  step,  without  holding  onto  any- 
thing,- if  there  is  abundant  room  inside  tlie  car.  McDonald  v.  Rail- 
way (Ala.)  20  South.  .■')17.  One  who  bi  anls  an  elevated  steam-railway 
car  in  motion,  by  getting  on  the  sheet  iron  covering  of  the  steps  of 
the  last  platform  on  the  train,  and  who  keeps  himself  in  that  position 
by  holding  to  tlie  iron  gate  that  bars  his  entrance  there,  until  struck 
by  a  structure  near  the  track,  and  knocked  into  the  sti-eet  below,  is 
guilty  of  negligence,  as  matter  of  law.  Carroll  v.  Transit  Co.,  107 
Mo.  0.")3.  17  S.  W.  889. 

(442) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    170 

passengor  who  rides  on  a  car  step  assumes  the  ordinary 
hazards  of  that  position,  such  as  the^isk  of  being 
thrown  from  the  car  by  its  usual  motion.  But  lie  as- 
sumes no  risk  created  by  any  unusual  or  dangerous 
rate  of  speed  resulting  from  the  negligent  conduct  of 
the  driver/  or  the  hazard  of  a  collision  with  a  lar  t)n 
another  track  at  a  point  where  the  two  tracks  are  un- 
usually close  together.* 

Of  course,  it  is  negligence,  as  matt(M'  of  law,  for  a 
I)assenger  to  ride  onthe  car  step  of  a  rai)i(lly  moving 
passenger  train.'  But  it  is  not  contributory  negli 
gence,  as  matter  of  law,  for  a  passenger  to  go  upon 
the  lower  step  of  a  slowly  moving  car,  and  standing 
there,  and  waiting,  while  the  car  is  slowly  moving, 
with  the  intention  of  alighting  when  the  train  should 
cease  to  move;  and  this  is  true,  although  the  passenger 
is  carrying  a  child  in  her  arm.^° 

1  Willmott  T.  Tlaihvay  Co.,  100  Mo.  5:^.'),  17  S.  W.  490. 

8  Herdt  v.  Itailroad  Co.,  Go  Hun.  (>25,  20  N.  Y.  Supi).  340.  The  de- 
fense of  contrilmtory  negligence,  in  tliat  plaintiff,  a  newsboy,  was 
standing  on  the  footboard  of  a  street  car.  when  he  was  knocked  off 
by  defendant's  wagon,  is  not  available  to  defendant,  though  it  mighty 
1)6  to  the  street-eai-  coniitany.  Mills  v.  ^^'t)lvertou,  9  App.  Div.  S2, 
41  N.  y.  Snpp.  90,  following  Connolly  v.  Ice  Co.,  114  X.  Y.  1U4,  21 
X.  E.  101. 

aCinciunali,  I.,  St.  L.  &  C.  Ry.  Co.  v.  McClaiu  dud.  Sup.)  14  X.  K. 
30(;.  A  1.")  year  old  boy.  of  average  iutelligeuce,  is  guilty  of  contribu- 
tory negligence,  as  matter  of  law.  iu  going  upon  the  lowest  stej)  of 
the  car  to  vomit,  though  there  is  only  standing  room  in  the  car. 
Cleveland,  C,  C.  &  St.  L.  Ily.  Co.  v.  Moneyhun  (liid.  Sup.)  44  X.  !•:. 
1100. 

1"  Cincinnati,  H.  &  I.  R.  Co.  v.  Revalee  (Ind.  App.)  4t;  X.   l:.  :'..j2. 

But  see  ante,  §  157. 

(443) 


§  171  CARRIERS  OF  PASSENGERS.  (Cll.  10 

g  171.     RIDING  IN  BAGGAGE  CAR. 

A  piisseiiger  who  willfully  violates  a  known  rule 
of  a  railroad  company,  prohibiting  passengers  from 
riding  in  the  baggage  car,  is  guilty  of  contributory 
negligence,  as  matter  of  law,  and  cannot  recover  for 
injuries  sustained  in  consequence  of  his  so  riding.^ 
'^The  baggage  car,''  it  is  said,  "is  a  known  place  of  dan- 
ger. In  this  respect  it  differs  from  the  cowcatcher 
and  the  platform  only  in  degree.  It  is  jjlaced  ahead 
of  the  passenger  car,  and  next  to  or  near  the  locomo- 
tive. In  cases  of  collision,  it  is  the  first  car  to  give 
way  to  the  shock,  and  is  frequently  the  only  one  seri- 
ously injured."  ^ 

Circumstances,  however,  may  justify  the  passenger 
in  riding  in  the  baggage  car.  Thus,  where,  during  a 
journey,  a  railroad  company  drops  off  its  passenger 
coaches  from  a  mixed  train,  and  offers  to  passengers 
conveyance  in  the  baggage  car,  a  passenger  who  ac- 
cepts the  offer  does  not  assume  the  risk,  nor  is  he  guilty 
of  negligence  in  so  doing.^  So  an  express  messenger 
is  not  chargeable  with  contributory  negligence  in  rid- 
ing in  the  baggage  car,  as  required  by  his  contract  of 


S  171.  1  Pennsylvania  R.  Co.  v.  Lansdon,  92  Pa.  St.  21;  Peoria  & 
K.  I.  R.  Co.  V.  I.ane,  So  III.  4-lS.  A  passenger  on  a  I'aihvay  train. 
Avlio.  instead  of  occnpying  a  coadi  provided  for  i)asseuf>:ers,  remains, 
Avithout  necessity  Iherefor.  in  tlie  bajigage  car,  and  there  receives  an 
injnry  in  tlie  wreck  of  the  train,  wliich  he  would  have -avoided  had 
he  remained  in  the  passenger  coach,  is  giiilty  of  contributory  negli- 
gence.    Houston  &  T.  C.  R.  Co.  v.  Clemnions.  oo  Tex.  SS. 

2  Pennsylvania  R.  Co.  v.  I>angdon.  92  Pa.  St.  21. 

3  Baltimore  &  P.  R.  Co.  v.  Swanii.  Si  Md.  400.  32  Atl.  175. 

(444) 


C}t_    10)  CONTRIBUTORY   NEGLIGENCE.  §    171 

employment,  and  may  recover  for  an  injury  caused  l>y 
the  eniiiue  and  bai>j>a«ie  car  fallinii  tliroui;li  a  brid-e, 
though  none  of  the  passenger  coaches  went  tlirough. 
He  assumes  only  the  risks  incident  to  the  character 
of  the  baggage  car,  and  the  goods  carried  thereon,  and 
not  the  risk  incident  to  the  defect  of  the  roadbed/ 
So,  where  it  has  been  customary  for  a  railroad  com- 
pany to  transport  its  employes  on  a  baggage  ear  to  and 
from  their  work,  they  are  not  guilty  of  contributory 
neulii-ence,  as  matter  of  law,  in  riding  there.'  So  it 
is  not  negligence,  as  matter  of  law,  for  a  passenger  to 
go  into  the  baggage  car  while  the  train  is  standing  at  a 

station.® 

Does  a  conductor's  permission  to  ride  in  the  baggage 
car,  or  in  any  other  dangerous  place,  relieve  the  pas- 
senger from  the  charge  of  contributory  negligence? 
The  true  view  would  seem  to  be  that  no  permission  or 
invitation  of  a  conductor  will  justif;^  a  passenger  in 
riding  in  a  place  so  obviously  dangerous  that  a  man 
of  ordinary   prudence  would   not   assume  the  risk.' 

4  San  Antonio  &  A.  P.  Ky.  Co.  v.  Adams,  U  Tex.  tUv.  AvV-  I"--  -* 
S.  W.  8;{i). 

5  O'DonnelJ  v.  Allegheny  R.  Co.,  5!)  Fa.  St.  239. 

e  GarduLT  v.  Railroad  Co.,  94  Ga.  538.  19  S.  E.  757;  Jones  v.  Rail- 
way Co.,  43  :^Iiun.  279.  45  N.  W.  444.  Wlu-ro  a  passenger,  while  the 
train  is  staudin-  at  tlie  station,  goes  into  ilie  basjiage  i-omi.artniont  of 
a  combination  passenger  and  baggage  car,  for  the  purpose  of  seeing 
the  conductor  upon  legitimate  business  connected  with  the  jouni.'v. 
the  (piestion  whether  or  not  the  passenger  was  rightfully  in  the  I  Mg- 
gage  compartment  is  for  the  jury;  ana  it  is  error  Ua-  llie  c.aiii  to  di- 
rect a  noasuit  in  an  action  for  injuries  sustained  in  a  .-..mussion  be- 
tween it  and  another  c.ir  while  bi-iug  coupled,  (iardn.r  v.  Kaiboad 
Co..  97  Ga.  4S'J.  25  S.  K.  :'.34. 
7  Downey  v.  Ilendri,..  4.;  Mi.h.  4;iS.  9  N.  W.  S2S.      Where  .-i  ,.as.sen- 

(4  43) 


§  J71  CARRIERS  OF  PASSENGERS.  (Ch.  10 

Now,  a  baggage  car  does  not  seem  to  be  a  place  of  such 
obvious  danger,  and  it  would  seem  to  be  a  proper  ques- 
tion for  the  J!iry  whether  a  passenger  who  rides  in  the 
baggage  car  with  tlie  conductor's  permission  is  guilty 
of  conti'ibutory  negligence.  This  is  the  rule  adopted 
by  some  of  the  courts.'  This  position,  however,  has 
been  vigorously  criticised  by  the  supreme  court  of 
Pennsylvania,  which  holds  that  a  conductor's  permis- 
sion to  ride  in  the  baggage  car  will  not  render  the  com- 
pany liable,  if  the  passenger  knew  the  company's  rule 
prohibiting  it.^ 

Suppose  a  passenger  injured   while  riding  in  a  bag 
gage  car  would  have  been  injured  in  a  wreck  or  colli- 

fit'i-  assnmes  a  Inakeinau's  iiosition  ou  a  train  at  the  conductor's  re- 
quest, the  mere  fact  that  the  position  thus  assumed  is  one  of  greater 
hazard  than  his  seat  Is  not  such  negligence,  as  matter  of  law,  as 
Avill  debar  a  recovery  for  injuries  sustained.  The  taking  of  a  haz- 
ardous position  at  the  conductor's  request  is  not  negligence,  unless  it 
is  so  obviously  dangerous  that  no  prudent  person  would  take  it. 
Chamberlain  v.  Railroad  Co.,  11  Wis.  248.     See,  also,  ante.  §  131. 

s.Tacobua  v.  Railway  Co.,  20  Minn.  12.->  (Gil.  110);  Watson  v.  Rail- 
way Co..  24  IT.  C.  Q.  B.  9S.  The  fact  that  a  railw^ay  company  has 
a  .rule  prohibiting  passengers  from  being  carried  in  its  baggage  cars 
does  not  absolve  it  from  the  duty  of  care  towards  passengers  who 
are  in  a  baggage  car.  if  it  habitually  disregards  the  rule,  and  permits 
passengers  to  ride  in  such  cars.  Jones  v.  Railway  Co.,  43  Minn.  278, 
45  N.  W\  444. 

9  Pennsylvania  R.  Co.  v.  Langdon,  02  Ra.  St.  21.  The  court  says: 
"There  can  be  no  license  to  commit  suicide.  It  is  true,  the  con- 
ductor has  charge  of  the  train,  and  may  asisign  passengers  their  seats. 
But  he  may  not  assign  a  passenger  to  a  seat  on  the  cowcatcher,  a  po- 
sition on  the  platform,  or  in  the  baggage  car.  We  are  unable  to  see 
how  a  conductor,  in  violation  of  a  rule  of  the  company,  can  license 
a  man  to  occupy  a  place  of  danger,  so  as  to  make  the  company  re- 
sponsible. It  is  otherwise  as  to  rules  w^hich  are  intended  merely 
for  the  convenience  of  the  company  or  its  passengers." 
(440) 


(^'jj      JQ\  CONTRIBUTORY   NEGLIGENCE.  §    I'l 

rion  even  if  he  bad  bec'ii  in  his  proper  phue  in  the 
train,   is   he   still   prevented   from   recoverinj-?      The 
court  of  appeals  of  New  York  holds  that  the  mere  pr.s- 
eiu-e  of  a  passen-er  on  a  bao-a.ue  car  at  the  time  of  a 
collision  is  not  contributory  neiilioence,  as  matlcr  of 
law,  if  his  beino  there  did  not  contribute  to  the  in- 
jury.^"      AVhen  contributory  ne-Hiience  is  interposed 
as  a  defense  to  an  action  against  a  railroad  company 
for  nej;lii;entlv  injurino-  a  passeniier,  and  the  supposed 
ne^liii-ence  consists  in  the  fact  that  the  passen-er  vol- 
untaiilv  occupied  a  position  in  the  train  which  was 
more  dan-erous  than  the  position  he  shouhl  have  oc- 
cupied, the  nature  of  the  accident  should  be  consid- 
ered;  and  if,  upon  such  consideration,  it  appears  that 
the  danger  of  injurv  from  that  particular  accident  was 
materially  increased  by  the  fact  that  the  passenger 
was  in  that  particular  place,  instead  of  the  place  lit' 
should  have  occupied,  he  ought  not  to  recover.     But 
if  the  nature  of  the  accident  be  such  that  the  danger 
of  injurv  was  not  enhanced  in  consequence  of  the  posi- 
tion*occupi(Ml  by  the  passenger,  or  if  the  accident  was 
of  such  a  nature  as  was  as  likely  to  occur  in  one  posi- 
tion of  the  train  as  another,  his  right  to  recovery  will 
not  be  affected  by  the  fact  that  he  was  in  an  improper 
place.^^ 

T,   M       wv.    ii->  v    Y    11"  "1  N"    E.  72'..  Jirtirniing  40 

'';Ti<^!L.Uv  ('.nt.  K.  CO.  V.  Th-unas-  A....-,-.  7.  Ky.  U-  In  this 
,,.c.  it  was  h.1.1  ilK.t  a  i.a^sniger  ri.lins  en  the  e-xpress  c-ar.  whn-h  m 
U,  front  of  the  regnhu-  i.assen.-er  coaches,  cannot  recovc-r  lor  m- 
juvics  Hustained  in  a  collision  of  the  engine  with  anin.als  on  the 
nuK       m  in  n.Mit,  E.  .K:  M.  V.  K.  Co.  V.  Root  (Neb.)  CM  N.  NV  •  •«»-, 

(447) 


§  172  CARRIERS  OF  PASSENGERS.  (Cil.  10 

§  172.     RIDIIJG    IN     OTHER     PLACES    OF     ALLEGED 

DANGER. 

A  railroad  company  is  responsible  for  the  safety  of 
passengers  in  any  place  which  it  provides  for  their  ac- 
commodation; and  riding  in  the  smoking  car,  next  to 
the  locomotive,  which  is  perhaps  not  the  safest  place 
on  the  train,  is  not  contribntory  negligence.^  So  a 
postal  clerk  not  on  duty,  and  returning  to  his  home 
from  a  rnn,  is  not  guilty  of  contributory  negligence,  as 
matter  of  law,  in  riding  on  the  postal  car,  with  the  con- 
ductor's permission,  and  in  the  absence  of  a  rule  of  the 
company  prohibiting  it.^  But  it  has  been  held  con- 
it  was  held  that,  if  the  iireseuce  of  a  passenger  in  the  express  car  is 
the  proximate  cause  of  liis  injury,  he  cannot  recover;  but  if  not  the 
proximate  cause  of  the  injury,  or  if  the  rislv  of  such  particuhar  injury 
was  not  increased  by  the  action  of  the  passenger,  then  it  is  no  de- 
fense that  lie  voluntarily  assumed  the  position  in  the  express  car. 
In  Carroll  v.  Railroad  Co.,  1  Duer  (N.  Y.l  r,71,  it  was  said  that  the 
presence  of  a  passer  ger  in  a  baggage  car  does  not  contribute  to  a  col- 
lision with  anotlier  train.  Hence,  if  he  is  injured  in  such  collision, 
he  may  recover,  tliough  he  would  not  have  been  injured  if  he  had 
been  in  a  passenger  car  on  the  train.  This  position  is  radically  un- 
sound. The  question  is  not  whether  the  passenger's  position  con- 
tributed to  the  collision,  but  to  his  injury. 

§  172.    1  Goble  v.  Railroad  Co.,  10  Fed.  Cas.  502. 

2  Baltimore  &  O.  R.  Co.  v.  State,  72  Md.  :^(>,  IS  Atl.  1107.  The  court 
said:  "There  was  no  rule  of  the  company  forbidding  the  deceased 
to  enter  the  car,  and  occupy  the  same,  if  he  was  not  in  actual  service. 
It  was  his  habit  to  occupy  it  wlien  he  was  returning  from  duty,  when- 
ever lie  chose;  and  the  conductor,  who  is  conLe;led  to  be  the  general 
agent  of  the  company,  not  only  made  no  objection,  but  permitted 
him.  from  time  to  time,  to  do  so.  There  are  cases,  no  doubt,  where 
the  invitation  or  permission  of  the  conductor  would  not  protect  a  man 
in  running  a  risk  Avhich  was  so  obviously  dangerous  that  a  prudent 
man  would  not  thiuli  of  incurring  it.     To  justify  a  ccanr  in  saying 

(448) 


(Jll      10)  CONTKIBUTORY   NEGLIGENCE.  §    iT'i 

tributory  nojiliiience  for  a  passeiijier  to  ride  in  an  ex 
press  car,  in  violation  of  a  known  rule  of  the  comi)any, 
where  such  violation  brin<;s  on  the  passen.iier  an  injury 
from  which  he  would  have  escaped  had  he  been  in  the 
re};ular  passenger  coach.^ 

Where  the  train  on  a  cable  railway  consists  of  a 
"dummy"  or  "grip"  car  and  a  trailer,  a  passenger  is 
not  chargeable  with  negligence  in  taking  a  seat  in  the 
dummy  car,  instead  of  in  the  trailer.*  So  a  passenger 
on  a  stagecoach  riding  on  the  outside,  who  refuses  to 
take  an  inside  seat  when  requested  by  the  agent  of  the 
stage  line,  assumes  only  the  peculiar  risk  of  his  ex- 
posed position,  but  not  that  resulting  from  the  negli- 
gence of  the  driver.^ 

that  conduct  is  per  se  negligence,  the  case  must  present  some  such 
feature  of  recklessness  as  would  leave  no  opportunity  for  diffrri'iK-o 
of  opinion  as  to  its  imprudence  in  the  minds  of  ordinarily  prudent 
men."  An  emploj-e  of  a  theatrical  company  was  riding  in  a  show 
oar.  to  care  for  the  company's  property  carried  therein,  as  was  his 
duty.  The  car  was  sti-ong  and  well  built,  and  was  fitted  up  for  the 
accommodation  of  theatrical  employes,  whuse  duty  it  was  to  remain 
there.  Held,  that  llie  fact  that  such  e:nploy(''  left  a  passenger  coacli. 
and  was  riding  in  the  show  car  next  to  the  engine  when  a  collision 
occurred,  was  not  negligence,  as  matter  of  law,  but  that  it  was  a 
question  of  fact  for  the  jury.  Blake  v.  Kaihvay  Co.,  8'.»  Iowa.  8.  r>t: 
N.  \\'.  405,  distinguishing  s.  c.  78  Iowa.  57,  42  N.  W.  .>S0. 

3  Florida  South.  Ky.  Co.  v.  Hirst,  .:()  Fla.  1.  11  Soutli.  500.  It  was 
further  held  that  the  conductor  is  without  authority  to  waive  such  a 
ride,  but  that  the  habitual  violation  of  the  rule  with  the  permission 
of  the  company  amounts  to  a  waiver. 

4  Hinvkins  v.  Railway  Co.,  3  Wash.  St.  5i»L',  28  Tac  1021;  Cohi-n  v. 
Kaihvay  Co.,  9  C.  C  A.  22:5.  (50  Fed.  <;'.»8. 

&  Keitli  v.  rinkham,  V.\  Me.  5ul. 

V.  llKT.CAK.I'.vs.— 29  (-1-19) 


§1,3  CARRIERS   OF   PASSENGERS.  (Ch.    10 

§  173.     RIDING    ON    FREIGHT    AND    CONSTRUCTION 

TRAINS. 

Riding-  in  the  caboose  of  a  mixed  freight  and  pas- 
senger train,  with  the  permission  of  the  condnctor,  is 
not  such  negligence  as  will  prevent  a  passenger  from 
recovering  for  injuries  sustained  through  a  misplaced 
switch.^  As  a  general  rule,  when  passengers  are  ac- 
cepted on  freight  trains,  it  is  their  duty  to  ride  in  the 
caboose.  A  passenger  who  seats  himself  on  a  coal 
car,-  or  a  freight  car,-  when  he  could  have  taken  a  seat 
in  the  caboose,  is  guilty  of  contributory  negligence,  as 
matter  of  law,  though  he  does  so  at  the  invitation  of  a 
brakeman.* 

But  a  stoc  k  drover  carried  free  of  charge,  for  the  pur- 
pose of  looking  after  his  stock,  is  not  guilty  of  contrib- 
utory negligence,  as  matter  of  law,  in  riding  on  the 
stock  car,  in  accordance  with  the  custom  in  such 
cases. ^  And  even  where  the  rules  of  a  railroad  com- 
pany forbid  drovers  or  their  servants  to  ride  in  stock 
cars,  there  is  no  presumption  against  the  authority  of 
the  conductor  to  allow  them  to  visit  the  car,  and  look 
after  the  stock,  while  the  train  is  stopping  at  the  sta- 
tion." But  a  written  contract  with  a  railway  company, 
signed  by  a  shipper  of  live  stock,  providing  that  such 

§  17.3.     1  Cieetl  v.  llailiond  Co..  86  Fa.  St.  139. 

2  Woods  V.  .roups.  :'A  La.  Ann.  1086. 

3  Player  v.  Railway  Co..  CL'  Iowa,  723,  16  N.  W.  347. 

4  Atchison,  T.  cV-  S.  F.  Ky.  Co.  v.  Johnson.  3  Old.  41,  41  Vac.  641. 

5  I.aw.-ou  V.  Itaih-oad  Co.,  (;4  Wis.  447,  24  N.  W.  618. 

6  Olson  V.  Railroad  Co..  4.j  Minn.  .536,  48  N.  W.  445;    Florida  Ry.  & 
Nav.  Co.  V.  Webster,  2.j  Fla.  3t)5,  5  South.  714. 

(450) 


Ch.    lO)  CONTRIBUTORY   NEGLIGENCE.  §    173 

shipper,  while  beini»'  carried  on  the  train  transporting 
his  stock,  shall  remain  in  the  caboose  car  attached  to 
the  train  while  the  same  is  in  motion,  is  valid  and  bind- 
ing as  between  the  parties  thereto.  Such  a  contract  is 
a  reasonable  one,  intended  for  tlie  safety  and  conven- 
ience of  the  shipper,  as  well  as  for  the  protection  of 
the  railwa}'  company  carrying  him.  It  does  not  con- 
travene any  law  or  a  sound  public  policy."  And  a 
drover  who  rides  in  the  stock  car,  in  violation  of  such 
a  contract,  is  guilty  of  negligence,  as  matter  of  law, 
and  there  can  be  no  recoverv  for  his  death  caused  by 
the  derailment  of  the  stock  car.^  But  a  condition  in 
a  stock  pass  that  the  drover  shall  remain  in  the  ca- 
boose while  the  train  is  in  motion  does  not  prevent  him 
from  entering  the  stock  car,  for  the  purpose  of  looking 
after  his  cattle,  while  the  train  is  stationary.®  So  a 
custom  on  the  part  of  conductors  permitting  owners  of 
fine  horses  to  ride  in  the  car  with  them  waives  a  stip- 
ulation in  the  shipping  contract  requiring  the  owner  to 
ride  in  the  caboose.^** 

7  Ft.  Scott,  W.  &  W.  R.v.  Co.  V.  Sparks.  55  Kan.  288,  39  Pae.  1032, 

8  Honmpbieus  v.  Kaiiroad  Co.  (S.  D.)  05  X.  W.  4(5(3. 

«  Texas  cV:  P.  Ky.  Co.  v.  KecnUr.  22  C.  C.  A.  314,  76  Fed.  550. 

10  .Missouri,  K.  ^V:  T.  Ity.  Co.  of  Texas  v.  Cook  (Tex.  Civ.  App.)  33 
S.  W.  (ill!).  A  ((iiKlitiou  ill  a  sliippiiijr  contract  requiring  tlie  owner 
of  stock  to  ride  in  the  caboo.se  may  lie  waived  by  the  agents  of  the 
company  having  the  lej^al  or  apparent  power  to  act.  Both  tlie  station 
apent  sif,'ninjj  the  contract  and  tlie  cotKhictor  of  the  train  liave  tliis 
liower.  Such  a  waiver  is  valid,  whether  in  writinj;  or  by  parol,  and 
no  additional  consitleiatinn  is  necessary  to  make  it  valid.  The  dec- 
liuatiiiii  of  the  conductoi-.  in  takinj?  up  the  shipper's  tieket,  that  he 
could  ride  in  the  car  with  his  horse,  is  admis>^ilile  as  iiart  of  tlie  res 
j;est;e.  So  it  is  conspetent  to  ]irove  a  custom  of  <()iidu<'tors  to  allow 
shippers  of  fine  slock  U>  ride  in  the  car  with  it,  as  bearinj.'  on  the 

(131) 


§  174  CARRIERS  OF  PASSENGERS.  (Ch.  10 

Persons  ridins'  on  a  construction  train,  which  has  no 
caboose  attached,  are  not  .unilty  of  contributory  neg- 
ligence, as  matter  of  law,  in  riding  on  the  flat  car  next 
to  the  engine,  though  there  is  a  box  car  immediately  in 
the  rear  of  the  flat  car/'  So,  the  fact  that  a  passen- 
ger on  a  construction  train  was  told  to  ride  on  the  ten- 
der, and  not  to  get  on  the  gravel  cars,  will  not  prevent 
recovery  for  an  injury  sustained,  while  on  a  gravel  car, 
in  a  collision  with  another  train,  unless  it  is  shown 
that  his  disobedience  of  the  order  contributed  to  the 
injury/' 

§  174.     RIDING  ON  TOP  OF  CAR. 

One  who  rides  on  a  projection  or  cupola  several  feet 
above  the  roof  of  a  caboose,  instead  of  inside  the  ca- 
boose, is  guilty  of  contributory  negligence,  as  matter 
of  law/  A  passenger  who  rides  on  top  of  a  box  car, 
instead  of  in  the  caboose,  is  guilty  of  negligence,  as 
matter  of  law,  and  there  can  be  no  recovery  for  his 

conductor's  power  to  waive  the  stipulation  requiring  tlie  drover  to 
ride  in  tlie  caboose.  Missouri.  K.  &  T.  Ky.  Co.  v.  Cook,  8  Tex.  Civ. 
App.  376,  27  S.  W.  700.  TlKiuiili  a  contract  for  tlie  sliipment  of  stal- 
lions prohibits  tlie  drover  from  riding  in  the  same  car  with  them, 
it  is  not  error  to  admit  evidence  that,  in  shipping  two  stallions  in 
the  same  car,  it  is  necessary  for  some  one  to  he  in  the  car  with  them, 
and  also  that  a  custom  exists  between  the  company  and  shippers  of 
stallions  and  other  valuable  horses  permitting  drovers  to  accompany 
stock  and  take  care  of  it.  Such  evidence  is  competent  as  showing  a 
waiver  of  the  prohiliitory  clause  in  the  contract.  Chicago,  B.  &  Q. 
R.  Co.  V.  Dicksun.  14:^  HI.  3GS.  32  N.  E.  380;    s.  c.  42  111.  App.  303. 

11  Berry  V.  Railway  Co.,  124  Mo.  223,  2.5  S.  W.  229;    Wagner  v. 
Railway  Co.,  97  Mo.  ,512,  10  S.  W.  480. 

12  I.awrenceburgli  &  (T.  :m.  R.  Co.  v.  Montgomery,  7  Ind.  473. 
§  174.     1  Tuley  v.  Railroad  Co.,  41  Mo.  App.  432. 

(452) 


(^\^      10)  CONTRIBUTORY  NEGLIGENCE.  §    1  * -i 

(lentil  in  a  dorailmciil.  wlicre  no  one  in  the  caboose  was 

injured.- 

So  a  drover,  who  rides  on  the  top  of  a  cattle  cnr, 
when  there  is  a  passeniier  car  attached  to  the  train,  is 
o-nilty  of  contributory  nejili^euce,  as  niattc^r  of  law, 
and  cannot  recover  for  injuries  sustained  from  the  de- 
railment of  the  car.^ 

But  where  a  railroad  company  cuts  out  the  caboose 
on  its  stock  trains,  a  stock  drover  is  not  guilty  of  neji- 
ligence  in  riding  on  top  of  a  car  to  the  stockyards,  in 
accordance  with  a  uniform  custom,  sanctioned  by  the 
company."  So  a  drover  who  goes  forward  to  examine 
his  stock  while  the  train  is  stationary  is  not  guilty  of 
contributory  negligence,  as  matter  of  law,  in  climbing 
on  top  of  tlie  train  as  it  suddenly  starts,  and  in  walk- 
ins-  back  to  the  caboose,  as  it  is  customary  for  drovers 
to  do  in  the  circumstances.  Nor  is  he  chargeable 
with  negligence  in  failing  to  look  towards  the  front  of 
the  train  while  so  walking,  and  he  is  not  thereby  de- 
barred from  recovering  for  injuries  sustained  by  being- 
struck  by  an  overhead  bridge,  of  the  location  of  whicli 
he  had  no  knowledge  or  warning.'  Consent  of  the 
train  hands  to  a  drover's  riding  on  top  of  a  cattle  car 
makes  the  question  of  his  contributory  negligence  one 
of  fact  for  the  jury,  though  in  so  doing  he  ignorantly 
violates  a  rule  of  the  company."     J'»ut  a  direction  of  a 

2Bt'yor  V.  Kailroad  Co.  (Ala.)  21  So-itli.  !t5L'. 

3  Little  Kock  &  Ft.  S.  Ky.  v.  Miles^,  40  Aik.  -J08. 

4  Tibby  v.  Railway  Co.,  82  Mo.  2U2. 

5  Chicago.  M.  &  St.  V.  Ry.  Co.  v.  CarixMitcr.  Tj  C.  C.  A.  "A.  r>fi  Fod. 

451. 

6  New  Orloaus  &  N.  I-:.  R.  Co.  v.  Thomas,  1)  (".  C.  A.  2'J,  GO  Fod.  .'{79. 

(4.-.:{) 


§  ]74  CARRIERS  OF  PASSENGERS.  (Ch.  10 

station  agent  to  a  cattle  drover  to  ride  on  top  of  the 
cattle  car,  instead  of  in  the  passenger  car  attached  to 
the  train,  does  not  relieve  the  drover  of  contributory 
negligence  in  riding  on  top  of  the  car.  The  station 
agent  has  no  implied  anthority  to  direct  a  passenger 
where  to  ride.  That  is  the  business  of  the  conductor.' 
The  courts,  however,  have  not  as  yet  gone  so  far  as  to 
require  the  conductor  to  use  force  to  compel  a  passen- 
ger to  remain  in  the  car  provided  for  him.  A  request 
by  the  conductor  of  a  mixed  freight  and  passenger 
train  to  a  passenger  riding  on  top  of  a  freight  car,  that 
he  come  into  the  passenger  car,  is  sufficient;  and,  if 
unheeded,  the  carrier  is  not  liable  for  injuries  to  the 
passenger,  who  fell  from  the  train  while  in  motion.* 

But  in  St.  Louis  S.  W.  Ry.  Co.  v.  Rice.  9  Tex.  Civ.  App.  509,  29  S.  W. 
52'j,  it  was  lield  that  the  fact  that  a  caboose  is  crowded  does  not  jus- 
tify a  passenger  in  riding-  on  top  thereof,  even  with  the  conductor's 
consent,  if  it  was  a  place  of  obvious  danser,  and  not  allotted  by  the 
company  for  the  use  of  passengers.  In  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Lindley,  42  Kan.  714,  22  Tac.  70:j.  it  was  held  that  a  shipper  of 
■stock,  who  obeys  the  order  of  a  conductor  to  get  on  top  of  the  car 
at  a  station,  and  signal  to  the  train  hands  to  enable  them  to  perform 
their  duties,  voluntarily  places  himself  in  a  position  of  known  danger; 
and.  as  he  is  not  on  top  of  the  train  to  look  after  or  care  for  his 
stock,  the  company  is  not  liable  for  injuries  sustained  in  being  thrown 
from  the  train  by  a  sudden  jerk  of  the  engine. 

7  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Miles,  40  Ark.  298. 

8  Aufdenberg  v.  Railway  Co.,  1.j2  Mo.  .5G5,  34  S.  W.  4S5.     See,  al,«o, 
ante.  $  liiT. 

(454) 


Ch.    10)  CONTRIBUTORY  NEGLIGENCE.  §    175 

§   175.     RIDING    ON    LOCOMOTIVE    OH    ON    TENDER. 

It  is  contributory  neglijicnce,  as  matter  of  law,  for 
a  passenger  to  ride  on  the  locomotive.^  Tlie  fait  that 
he  is  theri^  at  tlie  invitation  of  the  conductor  or  en- 
gineer is  immaterial;  and  so  is  the  fact  that  he  was 
ignorant  of  a  rule  prohibiting  all  persons  except  the 
engineer  and  fireman  from  riding  there."  Ho,  it  is  neg- 
ligence, as  matter  of  law,  for  a  passenger  to  ride  on 
the  footboard  of  the  engine,"  or  on  the  pilot  or  cow- 
catcher.* i^o  an  employe  of  a  railroad  company,  who, 
while  being  carried  from  his  work  on  a  ti-aiii  consist- 
ing of  an  engine,  tender,  and  gondola  car,  sits  on  a  uar- 

§  17.">.    1  MeGucken  v.  Kailnad  Co.,  77  Hun.  (>!),  28  N.  Y.  Siii)i).  29S. 

2  Texas  &  P.  Ky.  Co.  v.  Boyd,  C  Tex.  Civ.  \]n>.  20.").  24  S.  W.  1086. 
A  locomotive  eugiueor  has  no  authority  or  vijiht  to  say  who  shall  be 
upon  the  train,  or  give  permission  to  any  one  to  ride  upon  his  engine, 
against  the  rules  of  the  company.  Chicago  <S:  A.  R.  Co.  v.  Michie,  S;J 
111.  427.  A  passenger  on  a  construction  train,  who  leaves  his  place 
on  a  car  where  it  is  customary  for  passengers  to  ride,  and,  at  the 
request  of  a  fireman,  commences  to  clean  the  headlight  of  the  engine, 
is  guilty  of  negligence.  Brown  v.  Scarboro.  D7  Ala.  310,  12  South. 
28!). 

2  Wilcox  V.  Railway  Co.  (Tex.  Civ.  App.)  .'!::  S.  W.  o7U;  Chicago  & 
X.  AV.  Ky.  Co.  v.  Rielly,  40  Rl.  App.  410. 

4  Downey  v.  Railway  Co.,  28  AN'.  \'a.  7.'>2.  Knowledge  or  consent 
of  train  hands  is  immaterial.  Id.  A  full-blooded  negro,  having  the 
ordinary  intt'lligence  of  his  race,  may  be  found  by  the  jury  to  be 
guilty  of  contributory  negligence  in  riding  on  the  pilot  of  a  locumotive 
engine,  though  directed  ao  to  do  by  the  train  hands.  Huckcr  v. 
Railway  Co.,  61  Tex.  401).  A  trespasser  lidiiig  on  the  jiilot  of  a  loco- 
motive engine  is  guilty  of  contributory  negligence,  which  will  jne- 
clude  recovery  for  injui-ics  sustained  in  a  collision,  though  the  com- 
pany's servants  were  guilty  of  negligence,  and  knew  of  the  dau^erouii 
position  of  the  tresi  as.scr,  and  did  not  warn  him  off.  Dai  win  v.  Kail- 
road  Co..  s.',  s.  c.  rr.'A. 

(  I')."  I 


§    175  CARRIERS   OF  PASSENGERS.  (Ch.    10 

row  platform  in  the  rear  of  tlie  tender,  with  his  legs 
and  feet  hanging  over  the  edge,  in  spite  of  repeated 
warnings  from  his  sni)eriors  and  fellow  servants,  is 
gnilty  of  contribntory  negligence,  as  matter  of  law.^ 

Bnt  to  take  a  seat  in  the  cab  of  a  locomotive  by  the 
direction  of  the  engineer,  in  sole  charge  of  the  train, 
is  not  contribntory  negligence,  as  matter  of  law,  on  the 
part  of  a  passenger  who  has  paid  his  fare,  where  iDas- 
sengers  are  habitnally  or  occasionally  carried  in  the 
same  or  like  places  on  the  train, ^  So,  where  it  is  cus- 
tomary for  a  railroad  company  to  carry  stock  drovers 
on  the  stock  car  or  the  switch  engine  from  a  point  near 
Chicago  to  the  stock  yards,  and  no  other  mode  of  trans- 
portation is  provided,  it  is  a  question  for  the  jury 
whether  a  stock  drover,  who  rides  on  the  footboard  of 
the  engine  by  direction  of  the  engineer,  is  guilt}^  of  neg- 
ligence. "It  cannot  be  said,  as  matter  of  law,  that  a 
prudent  and  ordinarily  cautious  man  would  not,  under 
any  circumstances,  ride  a  short  distance  upon  an  en- 
gine. Experience  has  shown  there  is  some  danger  in 
the  safest  mode  of  railway  travel,  and  it  cannot  be 
said  that  one  must  not  take  a  particular  mode  of  travel 
because  it  is  dangerous.  The  question  can  only  be  de- 
termined, as  before  stated,  by  a  consideration  of  all 
the  attending  circumstances."  ^ 

5  LehiKli  Val.  R.  Co.  v.  Greiner,  113  Pa.  St.  rm.  6  Atl.  246. 

6  Hausuu  V.  Trausiicrtatiou  Co.,  3<S  La.  Auu.  111. 

7  Lake  Shore  &  M.  S.  R.  Co.  v.  Brown.  123  111.  162,  14  N.  E.  197. 
In  such  a  case,  it  cannot  be  said,  as  matter  of  law.  tliat  the  drover 
is  chargeable  with  contributory  negligence  because  he  tailed  to  talie 
a  street-car  line  to  the  stock  yards.     Id. 

(456) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    177 

§   176.     RIDING  ON  HAND  CAR. 

In  Iiidiaiia  it  luis  been  held  tliat  to  volnntarilv  ride 
on  a  hand  car  in  the  nii;httinie  is  contribntoj-y  neiili- 
genee,  wliicli  ])re(lndes  recovery  for  death  caused  by  a 
collision  with  an  enjiine/  But  in  "Wisconsin  it  has 
been  held  that  a  passenoer  transi)orted  by  a  i'aili'oa<l 
company  on  a  hand  car  is  not  jiuilty  of  contribntory 
nejiligence,  as  matter  of  law,  in  ridino-  on  the  rear  end 
of  the  car,  with  his  lej»s  hanjiinii  over,  where  he  has 
been  directed  so  to  do  b}'  the  person  in  charge  of  the 
car.^ 

§  177.     STATUTORY  PROHIBITION  AGAINST  RIDING 
IN  DANGEROUS  PLACES. 

Statntes  exist  in  many  of  the  states  which  relieve 
railroad  companies  from  liability  for  injnries  to  pas- 
sengers snstained  while  riding  on  the  platform  of  a 
car,  or  on  any  baggage,  wood,  gravel,  or  freight  car,  in 
violation  of  printed  regulations  conspicuously  posted 
inside  of  passenger  coaches  on  the  train,  or  in  viola- 
tion of  positive  verbal  instructions  given  to  the  i)as- 
senger  by  any  of  the  officers  in  charge  of  the  train,  pro- 
vided there  is  room  inside  the  ])assenger  coaches  for 
the  accommodation  of  passengers.^     Such  a  statute  is. 

§  ITC).     1  Rcani  v.  Knilroad  ("o..  4Jt  Ind.  M.S. 

2  Pool  V.  Kailwiiy  Co..  oC  Wis.  l^l'T,  14  X.  \V.  -If,;  I.I..  .".:;  Wis.  GT.T, 
11  X.  W.  1.",. 

§  177.  1  Civ.  Codf  Cal.  §  4S4;  Rev.  St.  lud.  1S94,  §  51!)2  (Kov.  St. 
lud.  ISSl.  §  :«)2.S);  1  How.  Ann.  St.  Mkli.  S  -i-'^d;  Hcv.  St.  Mo.  ISSll.  S 
lir.87;  Comi).  SI.  Xt-1».  lS!i:?.  ]>.  lUO,  §  110;  (Jen.  St.  Xcv.  iss."..  S  ss-J; 
Revision  X.  .1.  i>.  '.r.'A,  §  121;    C'dniii.  ]..i\vs  X.  .M.  I.ss4.  S  2(i74;    Laws 

(■t">T) 


§  177  CARRIERS  OF  PASSENGERS.  (Cll.  10 

to  be  strictly  construed;  and,  in  order  that  it  be  ap- 
plicable to  a  passen«;er  riding-  on  the  platform,  the  car 
must  be  in  motion  when  the  accident  occurs,  and  there 
must  be  some  connection  of  cause  and  effect  between 
the  injury  of  the  passenger  and  his  being  on  the  plat- 
form.'^ To  render  applicable  a  statutory  prohibition 
against  riding  on  the  platform  if  there  is  sufficient 
room  inside  the  car  "for  the  proper  accommodation  of 
passengers,"  the  company  must  furnish  a  seat  for  the 
passenger,  and  not  merely  standing  room;  and  unless 
it  does  so  a  passenger  is  not  guilty  of  contributory  neg- 
ligence, as  matter  of  law,  in  riding  on  the  platform.' 
So  the  statute  does  not  apply  to  a  passenger  who,  see- 
ing that  a  collision  with  another  train  is  inevitable,  at- 
tempts to  escape  from  the  car,  and  reaches  the  plat- 
form just  as  the  collision  occurs;  *  nor  to  a  passenger 
who,  at  the  invitation  of  the  brakeman,  goes  on  the 
platform,  to  be  in  readiness  to  alight  as  soon  as  the 
train  shall  stop.^     So  the  statutory  prohibition  against 

:N'.  Y.  is.")!),  c.  140,  §  4G;  Code  N.  (".  188:1.  §  1978:  2  Comi).  Law.s  Utah 
1S8S.  1).  32.  §  2o.j3.  I>aws  N.  Y.  1878,  c.  2G1,  make.s  it  a  ini.sdemeanor 
for  any  persoii  not  a  railroad  employe  to  ride  ou  a  wood  or  freight 
( ar.  Civ.  Code  Cal.  §  483,  provides  that  when  fare  is  taken  for  trans- 
pirtinji'  passengers  on  any  baggage,  wood,  gravel,  or  freight  train, 
the  same  care  must  be  taken,  and  the  same  responsibility  is  assumed, 
by  the  corporation  as  for  passengers  ou  passenger  cars. 

2  On  aha  &  K.  A'.  Ky.  Co.  v.  Chollette,  41  Neb.  578,  50  N.  W.  921. 

3  Choate  v.  Itailway  Co.,  67  Mo.  App.  105. 

4  Buel  V.  Railrcad  Co.,  31  X.  Y.  314.  Nor  does  the  statute  apply 
to  the  case  of -a  passenger  who  goes  on  the  platform  in  fear  that 
some  disaster  will  occin-  1  ccause  of  the  speed  of  the  train,  and  with 
the  intention  of  jumping  into  a  pile  of  sand.  Mitchell  v.  Railroad 
Co.,  87  Cal.  62,  25  Pac.  245. 

5  Baltimore  &  O.  R.  Co.  v.  :Meycrs,  10  C.  C.  A.  -:S">.  (;2  Fed.  367. 

(458) 


Ch.    10  CONTRIBUTORY   NEGLIGENCE.  §    178 

riding  on  the  platform  does  not  apply  to  street  rail- 
ways.'' And  where  a  railroad  company  does  not  post 
notices  in  its  i)assenger  oars  ])rohibiting  passengers 
from  riding  in  the  baggage  car,  the  presence  of  a  i)as- 
senger  in  a  baggage  car  Avlu^n  injured  in  a  collision 
does  not  bar  a  recovery,  if  he  was  there  with  the  knowl 
edge  and  consent  of  the  conductor.'  But  the  statutory 
prohibition  against  riding  on  the  platform  is  not  waiv- 
ed by  the  conductor's  failure  to  object,  if  there  is  sufti- 
cient  room  inside  for  the  accommodation  of  passen 


gers.* 


178.     SAVING  HUMAN  LIFE. 


It  is  not  contributory  negligence  in  a  person  to  risk 
his  life,  or  place  himself  in  a  position  of  great  danger, 
in  an  effort  to  save  the  life  of  another,  or  to  rescue  an- 
other from  sudden  peril  or  great  bodily  harm.  "The 
law  has  so  great  a  regard  for  human  life  that  it  will 
not  impute  negligence  to  an  effort  to  preserve  it,  nn 
less  made  under  such  circumstances  as  to  constitute 
negligence  in  the  judgment  of  prudent  persons."  ^ 
Thus  a  passenger  at  a  station,  noticing  an  intoxicated 

6  Vail  V.  Railroad  f"o..  U7  X.  Y.  .'wT.  4'_'  X.  E.  4,  affirming  (>  Misc. 
Rep.  2(»,  2<J  X.  Y.  Siipi).  •"'•>;  Lax  v.  Railroad  Co.,  46  N.  Y.  Super.  Ct. 
448.  A  statute  providins,'  that  street-raihvay  coniitanios  shall  not  he 
liable  for  injuries  to  persons  gotting  ou  or  off  at  the  forward  end  of 
the  car  does  not  apply  to  a  passenger  not  getting  on  or  off  at  the 
time  of  his  injury,  but  riding  on  the  steps  of  the  [tlatforni.  with  th«' 
knowledge  and  consent  of  t!ic  (hiver.  Seymour  v.  JJailway  Co.,  114 
Mo.  '2m,  21  S.  W.  739. 

7  Carroll  v.  Railroad  Co.,  1  Duer  (.^.  Y.i  r>71. 
slliggins  V.  Railnad  Co..  2  F.i  sw.  (X.  V.)  i:'.2. 

§  178.     1  I'eytou  v.  K:i:l\vay  Co.,  41  I.a.  Ann.  sr.l,  (5  S  >\\\\\.  (ino. 

(t .-,!)) 


§  179  CARRIERS  OF  PASSENGERS.  (Ch.  10 

friend  on  the  track,  in  dangerous  proximity  to  an  ap- 
proacliing-  train,  and  apparently  unconscious  of  peril, 
is  not  guilty  of  contributory  negligence  in  rushing  on 
the  track,  and  pushing  his  friend  off,  though  he  is  him- 
self strucl^  by  the  pilot  beam  of  the  locomotive."  So, 
where  a  child  is  thrown  from  a  car  platform  at  a  sta- 
tion bv  a  concussion  of  cars,  its  mother  is  not  charge- 
able  with  contributory  negligence  in  thrusting  her  arm 
under  the  wheels  to  save  her  child  from  being  crushed 
to  death. ^  Tn  Michigan,  however,  it  was  held  that  an 
attempt  to  board  a  train  running  at  the  rate  of  four 
miles  per  hour  is  negligence,  as  matter  of  law,  though 
made  for  the  purpose  of  informing  the  conductor  of  a 
broken  rail,  and  thus  avert  a  threatened  disaster.* 

§  179.     AFTER  THE  INJURY. 

It  is  the  duty  of  one  who  receives  personal  injuries 
from  the  negligence  of  another  to  use  ordinary  care  and 
■prudence  to  have  himself  cured,  and  he  forfeits  his 
right  to  recover  damages  that  might  have  been  saved, 
and  which  resulted  from  his  own  negligence  in  failing  to 
adopt  means  of  cure.^    But  the  injured  person  is  not  re- 

2  Id. 

h  De  Maliy  v.  Stfamsbip  Co..  45  I.a.  Ann.  1:^2;).  14  South.  61. 

4  Blair  v.  liail\va.\'  Co.,  CO  Micb.  124.  2r)  X.  W.  S.'..">.  This  case  was 
probably  corrt-c-tly  decided  on  the  ground  that  defendant  had  dot  beeu 
guilty  of  negligence,  but  it  is  very  questionable  whether  an  attemp; 
to  board  a  moving  train  under  these  circumstances  is  contributory 
negligence,  as  matter  of  law. 

5  179.  1  Gulf,  C.  .V  S.  F.  Ky.  Co.  v.  Coon,  09  Tex.  730,  7  S.  W.  492: 
Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Falvey,  ICNl  Ind.  4()9.  424,  3  N.  E. 
389.  4  X.  E.  908;    Secord  v.  Railway  Co.,  18  Fed.  221.     The  failure 

(400) 


Ch.    10)  CONTRIBUTORY   NEGLIGENCE.  §    170 

spousible  for  a  mistake;  autl  when  lie  actsin  j^ood  faith, 
and  imder  the  advice  of  a  eompi'teiit  physician,  eveu 
if  it  is  eiToueons,  the  error  will  not  shield  the  wron«i- 
doer.-  And  a  person  injured  by  the  negl licence  of  an- 
other, who  does  an  act  which  a.ujiravates  the  injury, 
may  recover  for  the  a<j;<^ravation,  if  his  own  ad  was  not 

of  an  injured  passenger  to  consult  a  physician  or  to  take  any  medi- 
cine for  a  week  after  the  accident  requires  tlie  luuit  to  submit  to  tlie 
jury  the  question  of  fact  whether  she  failed  to  exercise  ordinary  care 
in  the  means  employed  to  effect  a  cure.  AUcndi-r  v.  Railroad  Co.,  37 
lowq.  2ti4.  One  injured  by  another's  negligence  cannot  recover  for 
any  aggravation  of  the  injury  caused  by  his  failure  to  use  ordinary 
care  in  securing  medical  treatment,  am!  in  continuing  the  same  so 
long  as  his  injuries  appear  reasonably  to  require  it.  But  the  burden 
of  proving  that  plaintifl's  injury  was  aggravated  by  his  failure  to 
use  ordinary  care  in  jirocuriug  medical  attention  is  on  defendant. 
Citizen.s'  St.  R.  Co.  v.  Ilobbs  (Ind.  App.)  43  X.  i:.  47;t. 

2  Lyons  v.  Railway  Co.,  57  X.  Y.  4.S'.>.  One  who  receives  a  physical 
injury  at  the  hands  of  another  cannot  be  expected  to  know  in  every' 
instance  the  most  prudent  thing  for  him  to  do.  and  should  not  be 
lield  negligent  because  his  sufferings  are  such  that  they  impel  him  to 
a  course  apparently  favorable  to  his  recovery.  Culf.  C.  &  S.  F.  Ry. 
Co.  V.  McManuewitz.  70  Tex.  7:i.  S  S.  AV.  fJd.  Wlieie  a  \voman  four 
moiuiis  advanced  in  pregnancy  steps  into  a  hnU-  in  the  station  plat- 
form, and  receives  a  jar.  the  failure  of  herself  and  husband  to  call  a 
physician  immediately  is  not  contributory  negligence,  if  no  api>rehen- 
sion  of  immediate  injury  to  health  was  created  by  the  injury.  Texas 
&  P.  Ry.  Co.  V.  Xeal  (Tex.  Civ.  App.)  :V.i  S.  W.  («:5.  Tliat  liie  in- 
jured parly  does  not  follow  the  best  remedies,  or  that  he  may  not 
implicitly  follow  the  directions  of  his  physician,  is  not  siuli  contribu- 
tory negligence  which  will,  as  matter  of  law.  iireclude  recovery  f<>i 
an  injury  negligently  inllicted,  which  produced,  as  its  db-ect  elb-ct.  a 
disease  from  which  death  ensued.  Tlu'  law  lays  down  no  exact 
slandjird  of  duty  here.  It  should  be  left  to  the  jury  as  to  tlie  rea- 
sonalileness  of  the  conduct,  and  wlietin  r  oi-  not  deatii  was  caused  by 
the  injury.     Texas  &  St.  L.  Ky.  v.  Orr,  40  Ark.  ISli. 

(401) 


§179  CARRIERS   OF   PASSENGERS.  (Cll.    10 

neolioeiit.^  So  the  use  of  a  patent  medicine  by  plain- 
tiff upon  liis  hnrts  is  no  evidence  of  want  of  care  in 
treating  lii>s  injnries,  unless  it  is  shown  that  such  med- 
icine is  injurious  to  health.  A  patent  medicine  may 
or  raav  not  be  a  curative  agent.* 

8  Hope  V.  Railroarl  Co..  40  Hun,  438. 

4  Gulf,  C.  &  S.  F.  Ky.  Co.  v.  Brown.  4  Tex.  Civ.  App.  435,  23  S.  W. 
61S. 

(462) 


L'll.    11)  C0.>TRIBUT011V    XEGLiGENCE.  §    liO 


CHAPTER  XI. 

CUXTRIBT'TORY  XE(iLl(iKX("E  (Contiimed)— PERSONS  UNDER 

DISABILITY. 

?  m\  The  (Jenernl  Rule. 

181.  rersons  uuiler  l*liy.sical  Disability, 

182.  Sji  me— Women. 

183.  Persons  with  Detective  R(  asoninir  FaeuUies— Children. 

184.  Same— Intoxicated  Persons. 

185.  Persons  in  Po-ition  of  IVril. 

180.    Same- Defendant  must  he  (Juilty  of  Nej;li;ience. 
187.    Same — Aiiprehension  of  Danger  must  be  Reasonable. 
ISS.    Same— Avoiding  Inconvenience. 


§   183.     THE  GENERAL  RULE. 

While  the  standard  of  care  does  not  vary  with  the 
ability  of  each  individual,  yet  an  individual 
need  exercise  only  such  care  as  can  be  reason- 
ably expected  of  persons  of  the  recognized 
class  to  vT'hich  he  belongs.  In  addition  to 
normal  persons,  the  la^v  recognizes  t"wo  excep- 
tional classes:  (1)  Persons  laboring  under  some 
physical  disability,  such  as  the  blind,  deaf,  or 
crippled.  (2)  Persons  whose  reasoning  facul- 
ties are  defective,  such  as  children,  lunatics, 
intoxicated  persons,  and  persons  in  position  of 
peril. 

So  fill*  MS  tlic  snbj(Ht  of  contribiitorv  iK^iiiiuciiic  is 
(•oii(('i-ii('(l,  tlic  courts  have  cleiirly  rocojiiiizcd  the  doc- 
trine that  responsibility  is  j;radujite<l  according  (<»  cu- 

(4(i:{) 


§  181  CARRIERS  OF  PASSENGERS.  (Ch.  11 

pacity,.  and  determined  by  recoi^nized  classes.'  ^'To 
escape  the  responsibility  of  contributory  negligence, 
plaintiff  is  not  required  to  exercise  more  care  than  is 
usual  under  similar  circumstances  among  careful  j^er- 
sons  of  the  class  to  which  he  or  she  belongs,  if  that 
class  is  numerous  enough  to  have  a  well-recognized  ex- 
istence, and  is  one  which  reasonably  informed  men 
must  be  aware  may  be  commonly  exposed  to  injuries 
similar  to  that  on  which  the  action  is  founded."  ^ 

§  181.     PERSONS  UNDER   PHYSICAL   DISABILITY. 

The  fact  that  a  person  labors  under  some  physical 
disability  does  not  debar  him  from  traveling.'  It  is 
not  negligence  for  a  blind  man  to  travel  without  an  at- 
tendant, so  as  to  bar  recovery  for  his  death  in  a  colli- 
sion, though  he  might  have  escaped  from  the  car  in 
safety  if  he  had  not  been  blind."  But  a  passenger  with 
impaired  vision,  about  to  alight  from  a  train,  must 
make  proper  use  of  his  organs  of  hearing,  and  is  guilty 
of  contributory  negligence,  as  nuitter  of  law,  in  step- 
ping on  a  parallel  track  in  front  of  an  approaching 

§  ISO.     1  2  .Tas'.  Torts.  871.  872. 

2  Dimmey  v.  liailroad  Co..  27  ^^^  Va.  H2. 

§  181.      1  As  to  duty  of  carrier  to  infirm  passen.ser.  see  ante,  e.  8. 

2  St.  Louis.  I.  M.  &  S.  Ry.  Co.  v.  Maddry,  .17  xVrk.  300.  21  S.  W.  472. 
The  fat't  that  a  passenger  aliglitinj;  from  a  fi'rr\lioat  in  the  dark  is 
nearsighted,  and  by  rea>on  of  tliat  fact  steps  into  an  unguarded  and 
uulighted  opening  between  the  ferryboat  and  the  dock,  dues  not  show 
li(>r  guilty  of  contributory  negligence,  though  a  person  with  good  eye- 
siglit  nnght  liave  discovered  the  danger.  Drake  v.  Town  of  Dart- 
iuouth,  25  X.  S.  177. 


Ch.    11)  CONTRIBUTORY   NEGLIGENCE.  §    182 

train,  the  noise  of  wliich  could  be  lieard  for  a  mile.'  So 
a  lame  passenger  is  required  to  exen-ise  more  cautiou 
in  oettiutr  on  a  train  than  otherwise  mijiht  b,'  dcmaiKlcil 
of  liim/  But  the  fact  that  a  passeu.uer  is  crippled, 
and  uses  a  crutch  and  cane,  does  not  render  it  con- 
tributory neiiliueuce  for  bim  to  ride  on  the  footboard 
of  a  crowded  street  car,  so  as  to  preclude  a  recovery 
for  injuries  sustained  in  beino-  squeezed  by  another 
car,  near  the  intersection  of  a  switch  track  with  the 
main  track. ^ 

§  182.      SAME— WOMEN. 

In  determiniu<;  whether  a  woman  has  exercised  rea- 
sonable care,  the  jury  may  take  into  consideration  her 
age,  sex,  and  physical  condition.'     Thus,  where  a  wo- 

3  Gonzale.s  v.  Railroad  Co.,  li'd  N.  Y.  Super.  tU.  r>7.  But  see  same 
case  on  appeal,  38  N.  Y.  440. 

4  Snowden  v.  Railroad.  1;")!  Mass.  220,  24  N.  E.  40.  It  is  iK'j;li.i;i'U(i> 
per  se  for  a  mau  so  crippled  that  lie  cau  scarcely  get  ou  or  off  a 
train  while  at  rest  to  attempt  to  bDjinl  a  moving  train.  Cincinnati. 
H.  &  D.  Ry.  Co.  V.  Nolan,  8  Ohio  Cir.  Ct.  ;!4T. 

3  Topeka  City  Ry.  Co.  v.  IligitsT  38  Kan.  37.".,  IC  Tac.  G(57.  A  pas- 
senger who  understands  the  EnfjUsh  languairi'  imperfectly  is  not 
chargeable  with  contributory  negligence  in  not  giving  heed  to  warn- 
ings of  an  Impending  collision  with  another  train,  and  in  resisting 
friendly  efforts  to  drag  him  from  the  car.  if  he  did  not  understand 
the  words  addressed  to  bim,  or  know  the  object  and  reason  of  the 
violent  efforts  made  by  the  person  who,  attempted  to  remove  liim 
from  the  danger.     Walter  v.  Railroad  Co.,  30  Iowa,  3:;. 

§  182.  1  Hickman  v.  Railway  Co.,  01  Mo.  434.  4  S.  W.  127.  Thi-; 
was  a  case  where  a  woman  (',.-)  years  old.  .iiid  weighing  17o  pounds 
was  injured  while  alighting  fn.ni  a  train.  Tiie  conrl  said:  •'Slie  was 
required  to  use  only  sucli  ordinary  care  ami  diiueiMc  as  a  pru  lent 
per.son  in  her  situation  would  use;  and  how  (oukl  the  jury  deiermine 
whether  she  had  acted  with  the  ordinary  care  and  diligence  with 
V.  1fet.c\u.i'as.— 30  (405) 


§  ib2  CARRIERS  OF  PASSENGERS.  (Ch.  11 

mau  jumps  from  a  street  car  when  the  horses  are  run- 
uing  away,  the  question  Avhether  she  is  s;uiltY  of  con- 
tributory negligence  depends  on  the  question  whether 
a  person  of  ordinary  prudence,  of  the  same  class  to 
Avhicli  she  belongs,  would  act  in  a  similar  manner.- 
But,  on  the  other  hand,  a  young,  active  man  may  pru- 
dently alight  from  a  moving  train,  when  the  attempt 
would  be  reckless  in  an  old  or  a  lame  man;  and  any 
man  may  do  so  prudently  when  it  would  be  dangerous 
for  a  woman  in  female  attire  to  attempt  it.^ 

The  fact  of  pregnancy  is  also  to  be  taken  into  ac- 
count by  the  jury  in  determining  whether  or  not  a  fe- 
male passenger  exercised  reasonable  care.  Thus,  it 
has  been  held  that  the  question  whether  a  married 
woman  in  the  early  stages  of  prospective  maternity  is 
guilty  of  negligence  in  jumping  from  the  car  steps  to 
the  ground,  with  the  conductor's  assistance,  and  in  aft- 
erwards riding  in  a  buggy  to  her  home,  rather  than  re- 
main at  the  station,  and  take  immediate  precautions 
to  obviate  the  threatened  consequences,  is  for  the  jury. 
In    this    case,    Chief   Justice    Bleckley    said:      "Such 

which  a  prudent  person  would  have  acted  in  hev  situation,  unless 
they  cons^idered  that  situation,  her  environment.  Ikhv  a  prudent  mind 
would  have  guided  the  action  of  such  a  body  as  she  po.ssessed?  And 
how  could  they  do  this  without  consi^^enng  that  body,  its  sex,  Its  age, 
and  its  physical  condition':"' 

2  Dimmey  v.  Railroad  Co.,  27  W.  Va.  'S2. 

3  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Tankersley,  54  Ark.  25,  14  S.  W. 
1099.  A  female  passenger  in  an  enfeebled  conditivin.  who,  not  hav- 
ing time  to  leave  the  train  during  its  slop  at  her  place  of  destination, 
leaps  therefrom  after  it  gets  in  motion,  without  any  Avarniug  to  the 
conductor  or  otlier  employe,  is  guilty  of  negligence,  as  matter  of  law. 
Louisville  &  N.  R.  Co.  v.  Lee,  97  Ala.  325,  12  South.  48. 

(4G6) 


CIj.    11)  CONTRIBUTORY   NEGLIGENCE.'  §    1S2 

knowledge  as  we  possess  in  respect  to  risks  wliicli  \)vn- 
dent  women  may  or  may  not  take  in  the  early  stages 
of  prospective  maternity  does  not  enable  us  to  «letect, 
in  the  light  of  the  record  before  us,  the  mistake  of  the 
jury,  if  they  committed  any,  in  deciding  the  question 
of  fact  with  which  they  had  to  deal.  The  conformity 
of  their  verdict  to  law  and  to  the  charge  of  the  court 
depends  on  whether  they  had  a  correct  standard  of  the 
prudent  pregnant  Avoman  in  their  minds,  and  whether 
they  correctly  coni])ared  therewith  the  conduct  of 
plaintiff.  We  can  only  hope  the  jury  went  right  in 
both  these  respects,  for  the  plain  truth  is  we  do  not 
know  whether  they  did  or  not."  * 

In  the  days  before  the  advent  of  the  new  woman, 
with  her  bicycle  costume,  railroad  companies  attempt- 
ed to  fasten  a  charge  of  contributors'  negligence  on  fe- 
male passengers  because  their  style  of  dress  impeded 
their  freedom  of  motion.  Xo  court,  however,  had  the 
temerity  to  permit  this  attempt  to  succeed.  In  a  case 
where  a  female  passenger  refrained  from  grasping  a 
pendent  strap  in  a  street  car  because  she  could  not  con- 
veniently reach  it,  and  because  to  do  so  would  have 

*  Georgia  Railroad  &  Banking  Co.  v.  Vary,  812  CJa.  'A,  8  S.  E.  186. 
WhiMc  a  train  does  not  stop  at  a  station  platform,  but  at  a  point  :W0 
feet  beyon<l.  a  IVniale  passenger  i.s  not  giiilly  of  contrihulory  negli- 
gence, as  matter  of  law,  in  obeying  the  conductor's  command  to  jump 
to  the'  ground,  a  distance  of  four  feet,  though  she  is  live  months  ad- 
vanced in  pregnancy.  Baltimore  &  O.  K.  Co.  v.  Leapley,  05  Mil.  .".71, 
4  Atl.  8'.»1.  A  female  passenger  about  two  months  pregnant  is  not 
chargeable  with  contributory  negligence  in  atteiiiiitiiig.  at  a  smtinn 
where  there  is  no  platform,  to  board  a  train  by  stepi.ing  froni  the 
ground  to  ihe  lower  step  of  the  car,-a  distance  of  at  least  :?o  in.li.'s. 
Missouri  rac.  I{v.  Co.  v.  Watson.  12  Tex.  C.;!!,  10  S.  W.  T.-.l. 


§  182  CARRIERS  OP  PASSENGERS.  (Cb.  11 

disarranged  her  dress,  the  supreme  court  of  Pennsyl- 
vania said:  "Are  we  to  say,  as  matter  of  law,  that 
women  are  to  dress  in  a  certain  way,  and  that  their 
ordinary  habits,  according  to  the  usage  of  society,  are 
to  be  cast  aside  when  they  enter  a.  car,  for  fear  they 
should  find  no  seat?  Clearly,  these  are  facts  which 
enter  into  the  question  of  negligence,  and  form  a  part 
of  that  whole  out  of  which  the  jury  alone  must  draw 
the  conclusion.  Possibly,  a  woman  may  be  so  fan- 
tastically and  foolishly  hooped,  wired,  and  pinned  up 
as  to  deprive  her  of  her  natural  power  to  help  herself; 
but,  if  so,  the  question  is  one  of  fact,  and  not  of  law, 
and  so  we  conclude  to  leave  it,  instead  of  imposing  up- 
on our  brethern  below  the  difficult  duty  of  prying  into 
the  artificial  stays  of  plaintiff's  case."  ^  So,  it  cannot 
be  said,  as  matter  of  law,  that  a  female  passenger  on  a 
street  car  has  no  right  to  wear  a  hoop  skirt, '^  or  a  dress 
so  long  as  to  trail  behind  her,  and  rest  upon  the  plat- 
form as  she  is  alighting.' 

5  West  Pliilndelphia  P.  R.  Co.  v.  Whipple  (Pa.)  5  Wkly.  Notes  Cas. 
C8,  affiriniiij'-  11  I'liila.  345. 

«  Colt  V.  Railroad  Co.,  :;3  X.  Y.  Super.  Ot.  189,  affirmed  in  4<J  X.  Y. 
(!71. 

"  la  Chartraud  v.  R.-nhvay  Co.,  57  Mo.  App.  425.  the  court  said:  "It 
might  he  reasoned  out  to  tlie  satisfaction  of  some  tliat  a  lady,  iu 
passiug  from  a  street  car,  is  uuder  the  legal  obligation  to  lift  her 
dress  lu  order  to  avoid  an  luiueces^arj-  and  dangerous  obstruction 
near  the  floor  of  the  car;  but  we  have  been  unal)le  to  find  a  case 
giving  countenance  to  such  a  proposition,  nor  can  we  conceive  upon 
what  principle,  either  of  law  or  common  sense,  a  failure  to  do  so 
would,  for  the  reasons  stated,  be  an  act  of  negligence."  In  Patterson 
v.  Railway  Co.,  12  Ohio  Cir.  Ct.  274,  it  was  held  that  a  woman  alight- 
ing from  a  street  car  is  not  negligent  iu  permitting  her  dress  to  trail 
(408) 


Ch.    11)  CONTRIBUTORY   NEGLIGENCE.  §    18i^ 

§   183.     PERSONS    WITH    DEFECTIVE    REASONING 
FACULTIES— CHILDREN. 

The  law  requires  no  lireater  (ie<;ree  of  care  from  a 
child  than  niijiht  reasonably  be  expected  from  one  of 
his  years  and  experience/  In  determining  whether  a 
boy  acts  with  ordinary  care,  or  is  guilty  of  negligence, 
the  jury  must  consider  his  conduct  and  action  in  yiew 
of  his  age.  All  that  the  law  exacts  of  him  is  such  pru- 
dence and  discretion  as  is  usually  exercised  by  boys  of 
his  age.^  But  a  boy  must  exercise  care  and  prudence 
equal  to  his  capacity,  knowledge,  and  experience,  eyeu 
though  thereby  a  higher  degree  of  care  is  exacted  of 
him  than  of  boys  of  his  own  age  generally.'^ 

To  children  of  tender  years  no  contributor}-  negli- 

on  the  platform,  unless  she  kno-svs,  or  ought  to  Icuoaa^  by  the  exercise 
of  ordinaiy  care,  that  there  is  dauger  in  so  doing. 

§  183.  1  Chicago  &  A.  R.  Co.  v.  Nelson,  153  III.  89,  38  N.  E.  560. 
In  Texas  the  broad  doctrine  has  been  laid  down  that  a  child  that  is  a 
tre^^lJaaser  on  the  track  or  ti-ain  of  a  railway  company  may  recover 
daiiiages  for  injuries  sustained  as  the  result  of  his  voluntary  conduct 
in  placing  himself  in  a  position  of  peril,  if  he  is  so  lacking  in  intelli- 
gence and  discretion  that  he  does  not  appreciate  the  conse<nieuce» 
that  are  likely  to  result  from  his  conduct,  provided,  of  course,  that 
the  railroad  company  is  guilty  of  negligence.  Thompson  v.  Kaihvay 
Co.  (Tex.  Civ.  App.)  32  S.  W.  11)1.  In  most  states,  however,  the 
lalroad  company  is  tinder  no  obligation  to  exercise  care  towards 
trcspa.ssers.    See  post,  c.  IT. 

^  I'hiladelphia  City  Tassenger  Ry.  Co.  v.  Ilassard.  7.")  I'm.  ."^t.  .'MT. 
At  one  time,  however,  it  was  held  by  an  iiilcrior  courl  in  New  York 
that  no  distinction  exists  between  adults  and  <liildieu  in  respect  to 
what  constitutes  negligeiue.     Solomon  v.  Uaihdiid  <'o.,  1  Sweeny.  2JtS. 

8  yan  Xatta  v.  I'ower  Co.,  133  Mo.  13,  34  S.  W.  505. 


§  183  CARRIERS  OF  PASSENGERS.  (Ch.  11 

gence  can  be  imputed.*  Thus  a  child  six  years  of  age 
is  uot  of  sufficient  discretion  to  be  charged  with  con- 
tributory negligence  in  attempting  to  get  off  the  plat- 
form of  a  slowly  moving  street  car,^  or  in  attempting 
to  jump  from  a  moving  car,  pursuant  to  the  driver's 
orders.®  But  a  seven  year  old  boy  is  chargeable  with 
the  duty  of  exercising  such  degree  of  care  as  can  rea- 
sonably be  expected  of  one  of  his  age,  which,  in  view 
of  all  the  circumstances,  is  properly  for  the  jury."  So, 
a  nine  vear  old  bov  is  not  absolved  from  the  exercise 
of  all  care.  "While  the  law  makes  due  allowance  for 
the  thoughtlessness  and  indiscretion  of  youth,  it  does 
not  necessarily  hold  it  irresponsible.  A  child  must  be 
very  much  younger  than  plaintiff  to  warrant  the  court 
in  declaring,  as  a  conclusion  of  law,  that  he  is  incapa- 
ble of  negligence.  To  the  extent  that  a  child  has 
knowledge  and  understanding  of  a  danger,  or  where  it 
is  of  such  a  nature  as  to  be  obvious  even  to  his  years, 
he  is  under  a  legal  duty  to  avoid  it."'  ®     So  whether  the 

4  East  Saginaw  City  Ry.  Co.  v.  Bobn,  27  Mich.  503;  Erie  City  Pass. 
Ry.  Co.  V.  Schuster.  113  Pa.  8t.  412,  6  Atl.  2i;9  (four  year  old  child). 

5  Buck  V.  PoAver  Co..  4<>  ^lo.  App.  555. 

6  Bay  Shore  K.  Co.  v.  Harris.  (>7  Ala.  6. 

7  Connolly  v.  Ice  Co.,  114  N.  Y.  104,  21  N.  E.  101.  A  seven  year 
old  boy,  who  is  a  passenger  on  a  steamer,  cannot  be  said  to  be  neg- 
ligent, as  matter  of  law,  in  placing  his  foot  on  an  exposed  rudder 
chain.  The  jury  is  the  judge  as  to  whether  or  not  the  act  was  negli- 
gent in  a  child  of  that  age.  Garoni  v.  Compagnie  Xationale  De 
Navigation  of  Marseilles  (Com.  PI.)  14  N.  Y.  Supp.  797,  affirmed  131  N. 
Y.  G14,  30  N.  E.  SG5.  A  lad  eight  years  of  age  is  held  to  the  exercise 
of  that  degree  of  care  and  discretion  ordinarily  to  be  expected  of  a 
child  of  that  age.    Sandford  v.  Railroad  Co.,  136  Pa.  St.  84,  20  Atl.  790. 

8  Ridenhour  v.  Railway  Co..  102  Mo.  270.  13  S.  W.  889.  and  14  S. 
W.  760.     A  nine  year  old  boy,  who  has  safely  alighted  from  a  moving 

(470) 


Ch.    11)  CONTRIBUTORY   NEGLIGENCE.  §    ISo 

mind  of  a  bov  10  vcars  of  aiie  is  suttieieiitlv  mature  to 
make  liim  respousible  for  his  OAvn  contributory  nejili- 
gence  is  a  question  for  the  jury.  It  shouhl  not  be  de- 
cided by  the  court  on  demurrer  to  tlie  petit  ion.'  So  a 
bov  11  years  old  is  not  chariieable  with  contributory 
nejj^lii^ence,  as  matter  of  laAy,  in  riding  on  the  steps  of 
the  front  platform  of  a  street  car,  but  the  question 
whether  he  could,  by  the  exercise  of  that  degree  of 
care  and  diligence  to  be  expected  of  a  boy  of  his  age, 
bare  avoided  an  injury  to  himself  occasioned  bv  the 
rapid  driving  of  the  car  around  a  curve,  is  for  the 
jury/" 

strtt-t  car.  is  not  guilty  of  negiigence,  as  matter  of  laAV,  In  runiiiiif: 
around  the  rear  end  of  the  car,  and  attempting  to  cro.s.s  a  parallt'l 
tratk,  wliere  lie  is  struck  by  a  car  going  in  tlie  opposite  direction: 
but  the  question  is  for  the  jury.  Dunn  v.  Itailway  Co..  21  Mo.  Ai)p. 
188.  AVhere  an  injured  <  hild  nine  and  one-half  years  old  is  before 
the  jury  as  a  witness,  they  sliould  be  left  free  to  determine  for  them- 
selves, from  his  appearance  and  his  tesiimony,  and  the  testimony  of 
others  on  this  subject,  what  liis  capacity  was  for  exercising  care  for 
his  own  safety  at  the  time  he  was  injureil.  without  l)eing  liampered 
by  presumptions  of  law  eitlier  for  or  against  tlie  competency  of  tlie 
child.      Savaimah,  F.  &  W.  Ky.  Co.  v.  Smitli,  la  Ga.  74-_>.  21  S.  E.  i:>T. 

9  Avery  v.  Railway  Co.,  81  Tex.  24;j,  IG  S.  W.  1015.  A  10  year  old 
boy.  in  getting  off  a  street  car,  need  use  only  as  much  care,  caution, 
and  prudence  as  can  be  expected  from  one  of  his  age.  Brennan  v. 
Railroad  Co.,  4.1  Conn.  2S4:  Malicr  v.  Railroad  Co.,  G7  N.  Y.  52. 
aftifming  .^9  N.  Y.  Super.  Ct.  155.  A  boy  1(»  years  old  is  not  guilty 
of  contril)Utory  negligence,  as  matter  of  law.  in  arising  from  his  seal, 
and  following  adult  pa.ssengers  to  tlie  platform,  as  tlu'  train  is  enter- 
ing the  station  at  his  destination.  Schreiner  v.  Railroad  Co.  (Sup.) 
42  X.  Y.  Supp    !(>'.. 

1"  Wynn  v.  Railway,  91  Ga.  ^44.  17  S.  E.  (;41>.  Wlielher  or  not  a 
boy  11  years  old  is  guilty  of  contril)Uf()iy  negligence  in  jimipiiig  from 
a  moving  train  as  it  passes  thf  station  platftirni,  under  tlie  belief  that 
he  will  be  carried  away  if  he  does  not  do  so,  is  a  «nicstii)ii  of  fan  tor  die 

(471) 


§  1S3  CARRIERS  OF  PASSENGERS.  (Ch.  11 

But  a  12  year  old  boy,  of  ordinary  intelligence,  liv- 
ing in  the  immediate  vicinity  of  railroads,  and  accus- 
tomed to  them,  knows  as  well  as  an  adult  that  the 
front  of  an  engine,  when  reversed,  between  that  and 
the  cars,  is  not  a  safe  place  to  ride  when  the  train  is 
moving.  The  fact  that  a  boy  of  that  age  is  more  reck- 
less and  not  as  cautious  as  a  man  in  the  face  of  sucli 
danger  is  not,  of  itself,  enough  to  excuse  him;  and  in 
an  action  for  his  death,  caused  by  a  collision  with  an- 
other train,  it  is  proper  for  the  trial  court  to  refuse  to 
subnut  the  question  to  the  jury,  and  to  rule  on  it  as  a 
question  of  law.^^  So,  where,  by  law,  a  boy  over  14 
3'ears  of  age  is  presumptively  capable  of  committing 

jury.  Hemmingway  v.  Railway  Co.,  72  Wis.  42,  87  N.  W.  804.  So 
is  the  questiou  wlietber  a  boy  of  that  age  is  guilty  of  contributory 
negligence  in  ol)eying  the  conductor's  order  to  get  off  the  train  -while 
in  motion.  Benton  v.  Railroad  Co.,  55  Iowa,  49'G,  8  N.  W.  330;  or  in 
voluntarily  jumping  from  the  engine  while  in  motion  after  the  train 
hands  have  thrown  cold  Avater  ou  him,  Brauham  v.  Railroad,  78  Ga. 
35,  1  S.  E.  274. 

11  Ecliff  V.  Railway  Co..  04  Mich.  ItKI,  31  N.  W.  ISO.  But  the  court 
cannot  say,  as  matter  of  law,  that  it  is  negligence  for  a  12  year  old 
boy  to  walk  along  a  station  platform  within  a  foot  and  a  half  of  a 
train  moving  at  the  rate  of  two  miles  an  hour.  New  York,  C.  &  St. 
L.  R.  Co.  V.  Mushrush.  11  Ind.  App.  102,  37  N.  E.  954,  and  38  X.  E. 
871.  A  12  year  old  boy.  who  has  jimiped  on  a  projection  in  the  rear 
of  a  street  car,  is  not  guilty  of  contributory  negligence  in  jumping 
from  the  moving  car.  where  the  conductor  came  out  and  spit  at  Siim. 
and  made  a  punch  at  his  face.  Hagerstrom  v.  Railroad  Co.,  07  UL 
App.  63.  A  13  year  old  boy  should  be  held  to  the  exercise  of  that 
degree  of  care  and  diligence  ordinarily  to  be  expected  of  a  child  of 
hia  age,— neither  more  nor  less.  Crissey  v.  Railway  Co.,  75  Pa.  St. 
83.  But  it  is  negligence,  as  matter  of  law,  for  a  bright,  active  boy, 
13  years  old,  a  trespasser  on  a  train,  who  knew  the  attendant  danger, 
to  voluntarily  attempt  to  jump  from  a  train  which  is  running  20  miles- 
an  hour.  Howell  v.  Railroad  Co.  (Miss.)  21  South.  740. 
(472) 


Ch.    11)  CONTRIBUTORY   NEGLIGENCE.  ^    184 

crime,  he  is  presumptively  chargeable  with  diligence 
for  his  own  safety  against  palpable  and  manifest  peril, 
snch  as  that  of  jumping  from  a  railroad  train  in  rapid 
motion.  In  the  absence  of  any  evidence  of  want  of  or- 
dinary capacity  in  the  particular  boy,  he  should  not  be 
treated  as  a  child  of  tender  years,  but  as  a  young  per- 
son who  has  passed  that  period,  and  become  charge- 
able with  such  diligence  as  might  fairly  be  expected 
of  the  class  and  condition  to  which  he  belongs.'-  So  a 
17  year  old  girl  is  not  to  be  treated,  with  respect  to 
the  duty  to  take  care  of  herself,  as  a  child  of  tender 
years,  but  as  a  person  who  is  presumptively  charge- 
able with  the  exercise  of  ordinary  discretion  possessed 
by  young  persons  of  her  class  and  condition.'^ 

§  184.     SAME— INTOXICATED    PERSONS. 

In  testing  the  question  of  negligence,  the  law  rec- 
ognizes no  distinct  class  in  favor  of  intoxicated  per- 
sons. Drunk  or  sober,  a  man  must  exercise  that  de- 
gree of  care  which  an  ordinarily  prudent  and  sober  man 
would  exercise.  A  man  cannot  voluntarily  place  him- 
self in  a  condition  whereby  he  loses  such  control  of  his 
brain  and  muscles  as  a  man  of  ordinary  prudence  and 
caution,  in  the  full  i)ossession  of  his  faculties,  would 

12  Central  liailioad  &  Banking  Co.  v.  l'liillii;s.  91  (Ja.  r.Jt;,  17  S.  K. 
fi.-.2:  ficorgia.  C  iV:  ^.  Ky.  Co.  v.  Watkius.  1)7  Ca.  ."Wl,  24  S.  E.  'M. 
A  14  year  oM  lioy  is  not  alrsolvt'd  from  the  exercise  (if  «are  in  Imanl- 
ii;j:  a  niovinj;  street  car,  but  he  must  exercise  that  care  and  caution 
wliieli  H  iiiht  be  reasonably  exju'Cted  from  one  of  his  ajje.  experience, 
and  intelliyenee.      Sly  v.  Kaihvay  Co.  (Mo.  Svip.}  'M  S.  W.  li.T.. 

1  !  Kast  Teuut>s>ee,  V.  &:  CI.  Ky.  Co.  v.  lluj^hes.  lili  «;a.  .iss.  17  S.  i:. 
W.>. 

(47::) 


•§184  CARRIERS   OF   PASSENGERS.  (Ch.    11 

exercise,  and  thereby  contribute  to  an  injury  to  him- 
self, and  then  require  of  one  ignorant  of  liis  condition 
recompense  therefor/  Thus,  though  a  train  is  so  h)ng 
that  some  of  the  cars  stop  on  a  bridge  just  beyond  the 
station,  the  comj^any  is  not  liable  for  the  death  of  an  in- 
toxicated passenger,  who  gets  off  on  the  bridge,  and 
falls  into  a  stream  beneath,  where  the  bi-idge  is 
planked,  and  the  distance  from  the  track  to  the  edge  of 
the  bridge  is  at  least  14  feet.^ 

But  an  intoxicated  man  is  not  required  to  exercise  a 

§  184.  1  Strand  v.  Railway  Co.,  67  Mich.  380,  34  N.  W.  712. 
Hence,  in  an  action  for  injuries  to  a  pa.sseuser.  caused  by  au  alleged 
failure  to  give  him  a  reasonable  time  to  alight,  where  there  is  evi- 
dence that  plaintiff  had  drunk  more  or  less  iutoxicating  li(iuor  before 
taking  passage,  he  cannot  recover  if  the  liquor  interfered  at  all  with 
his  diligence  in  starting  to  leave  the  train,  or  lessened  his  caution  and 
prudence  in  getting  off.  Id.  The  self-intlicted  disability  of  intoxi- 
cation will  not  excuse  the  passenger  from  the  exercise  of  such  care 
as  is  due  from  a  sober  man.  Fisher  v.  Railroad  Co.  (W.  Ya.)  24  S. 
]{).  .570.  Mere  drunkenness  which  does  not  take  away  consciousness 
and  the  power  to  consider  the  danger  to  which  one  is  exposed,  nor 
deprive  him  of  physical  capacity  to  take  care  of  himself  and  avoid 
danger,  does  not  relieve  him  from  the  responsibility  of  exercising  due 
care  to  escape  the  danger;  and,  if  killed  in  consequence  of  s,ueh  neg- 
lect of  duty  on  his  part,  there  can  be  uo  recovery  on  account  of  the 
injury.     'Louisville  iVc  N.  R.  Co.  v.  Johnson,  108  Ala.  02,  19  South.  ."51. 

2  Deselms  v.  Railroad  Co.,  149  Pa.  St.  4.32,  24  Atl.  283.  Where  a 
drunken  passenger  steps  from  a  ferryboat  into  the  river,  the  fact  of 
drunkenness  is  a  defense.  Davis  v.  Railroad  Co.,  8  Or.  172.  In  au 
action  for  injuries  sustained  by  a  passenger  in  being  thrown  from 
a  street  car,  it  appeared  that  plaintirf  was  drunk  at  the  time  of  the 
accident:  that,  shortly  before  the  accident,  he  was  standing  on  the 
front  platform,  with  his  hands  on  the  guard  rails,  and  his  body  sway- 
ing back  and  forth.  There  was  no  evidence  of  any  defect  in  the  rails 
or  roadbed.  Held  that,  as  matter  of  law,  the  intoxication  contributed 
to  the  accident,  and  that  plaintiff  could  not  recover.  Holland  v.  Rail- 
way Co..  1.55  Mass.  387,  29  N.  E.  G22. 
(474) 


Ch.  11)  CONTRIBUTORY  NEGLIGENCE.  §  184 

greater  degree  of  care  than  a  sober  man;  and,  if  his 
conduct  is  characterized  by  a  proper  degree  of  care  and 
prudence,  his  inebriety  does  not  bar  a  recovery. '  So, 
if  an  occasion  arises,  bv  reason  of  the  carrier's  ne^li- 
gence,  when  a  prudent  sober  man  could  not,  by  the  ex- 
ercise of  all  ordinary  diligence,  ju-otect  himself,  i( 
would  be  of  no  consequence  that  a  passenger  injured 
by  such  negligence  had  by  voluntary  intoxication  in- 
capacitated himself  for  the  exercise  of  ordinary  <lili- 
gence.  The  loss  of  capacity  to  do  that  which,  if  done, 
would  be  unavailing,  could  not  rationally  count  for 
any  excuse  to  the  carrier,  or  be  chargeable  to  the  pas- 
senger as  a  reason  why  he  should  not  have  compensa- 
tion for  his  injuries/  In  other  words,  the  mere  fact  of 
intoxication  will  not  exonerate  a  carrier  from  liability 
for  injuries  to  a  passenger,  unless  such  intoxication 
proximately  contributed  to  the  injury.^ 

8  Chicago  &.  N.  W.  Ry.  Co.  v.  Drake,  :v.\  111.  App.  114.  Druuken- 
ness.  iu  aiul  of  itself,  is  not  contributory  negligence,  but  it  must 
appear  that  plaintiff  did  not  exercise  ordinary  care,  without  reference 
to  his  inebriety.  Tlie  (picstion  is  whether  iilaintiff's  conduct  came  up 
to  the  standard  of  ordinary  care,— not  wlii"lher  or  not  he  was  drunk. 
Denver  Tramway  Co.  v.  Reid,  4  Colo.  Apj).  .33,  35  Pac.  201). 

4  Central  Railroad  &  Banking  Co.  v.  Thinazee,  i).i  iiii.  4SS,  -Jl  S. 
E.  GG. 

5  Mt>yer  V.  Railroad,  40  Mo.  151.  Tlic  mere  fact  of  intoxication  is 
not  suthcient  to  establish  contributoi-y  negligence,  but  it  licars  on  ilic 
I)robability  or  improbability  that  plaintiff  was  guilty  of  negligem-c 
which  contributed  to  tlie  injury  which  he  sustained.  Milliman  v. 
Railroad  Co.,  GG  N.  Y.  G42,  altirnung  4  Hun,  400,  Into.xication  of  an 
Injured  person  i.s  not  proof  of  negligence  per  .se.  Ralliicore  &  ().  K. 
Co.  V.  State,  81  Md.  371,  32  Atl.  201.  If  a  passenger  on  a  linrsc  car 
is  injured  while  into.xif  at;  d,  tins  far-t  alone  does  not  ijrevent  his  iii:iin 

.taiuing  an  action;    but  if  liis  inloxicilion  conlributcd  to  the  iiiiury  in 

(47.->) 


§  185  CARRIERS  OF  PASSENGERS.  (Ch.  li 


^  185.     PERSONS  IN  POSITION  OF  PERIL. 

"It  is  settled  law  that  if  one,  by  the  negligence  of 
another,  has  been  placed  in  a  situation  of  apparent 
imminent  peril,  he  is  not  required,  in  attempting  to  es- 
cape therefrom,  to  nse  the  judgment  and  discretion 
that  is  required  of  him  when  not  dominated  by  terror 
of  impending  danger;  and  if,  Avithout  having  time  to 
deliberate,  and  acting  upon  the  instinct  of  self-preser- 
vation, and  as  a  prmlent  person  might  be  expected  to 
act  in  the  circumstances,  he  is  injured  by  adopting  a 
dangerous  alternative,  he  may  still  recover  from  the 
one  by  whose  negligence  he  has  been  impelled  to  act. 
This  is  true,  though  no  injury  would  have  resulted  had 
no  attempt  to  escape  been  made."  ^     The  leading  case 

any  degree  he  cannot  recover.  Maguire  v.  Railroad  Co.,  115  Mass. 
239;  Holland  v.  Railway  Co.,  155  Mass.  387,  29  N.  E.  622.  The 
mere  fact  of  intoxication  will  not  defeat  recovery  for  injuries  sus- 
tained in  being  jerked,  by  a  sudden  motion  of  the  train,  from  the  car 
while  alighting.  Newton  v.  Railroad  Co.,  oO  Hun,  491,  30  N.  Y. 
Supp.  488.  The  mere  fact  of  the  intoxication  of  a  passenger,  who 
was  drowned  by  falling  through  an  unguarded  opening  on  the  wharf- 
boat,  where  passengers  were  discharged  from  a  steamer,  does  not, 
as  matter  of  law,  establish  contributory  negligence,  but  such  intoxi- 
cation is  a  fact  from  which  the  jury  may  infer  contributory  negli- 
gence. Buddenberg  v.  Transportation  Co.,  108  INIo.  394.  18  S.  W.  970. 
The  fact  that  a  passeuger  standing  on  the  running  board  of  an  open 
street  car  was  intoxicated  does  not  preclude  recovery  for  injuries 
sustained  in  being  negligently  pushed  off  by  the  conductor,  but  it  is  a 
question  for  the  juiy  whether  the  passenger  Avas  in  the  exercise  of 
due  care  in  standing  on  the  running  board  while  in  an  intoxicated 
condition.     Kingston  v.  Railway  Co.  (Mich.)  70  N.  W.  315. 

§  185.      1  Bischoff  v.  Railway  Co.,  ll'l  Mo.  210,  25  S.  W.  908;    Klei- 
ber  V.  Railway  Co.,  107  Mo.  240,  17  S.  W.  94G.     See,  also,  Twomley 
V.  Railroad  Co.,  09  N.  Y.  158;    Wil-on  v.  Railroad  Co.,  2(j  Minn.  278, 
(47(1) 


(;h.    11)  CONTRIBUTORY   NEGLIGENCE.  §    1S5 

on  this  subject  is  Jones  t.  Boyce,'  (UH-idcl   in   ISH;. 
The  action  was  for  injuries  to  a  ]);isseni;er,  who  leapiMl 
from  a  stagecoach  after  the  liorses  had  become  nn 
o-overnable.      Lord   Ellenboroniih   sai<l:      "To   entitK* 
the  phiintiff  to  sustain  the  action,  it  is  not  necessary 
that  he  should  have  been  thrown  off  the  coach.     It  is 
sufficient  if  he  was  i)hiced,  by  the  misconduct  of  t!ic 
defendant,  in  such  a  situation  as  obliged  hiui  to  adoj't 
the  alternative  of  a  dangerous  leap  or  to  remain  at 
certain  peril.     If  that  position  was  occasioned  by  th^' 
default  of  the  defendant,  the  action  may  be  support- 
ed."     "If  I  place  a  man  in  such  a  situation  that  he 
must  adopt  a  perilous  alternative,  I  am  responsible  for 
the  consequences." 

Illustrations  of  this  principle  are  quite  numerous  in 
passenger  cases.  Thus  a  passenger  who  leaps  from  a 
stagecoach  to  escape  from  a  peril  created  by  the  neg- 
ligence of  the  carrier  or  his  servants  is  not  chargeable 
with  contributory  negligence,  though  such  attempt  in 
creased  his  peril,  and  though  he  would  probably  hav<' 
sustained  little  or  no  injury  if  he  had  remained  on  tlie 
coach.'     So  a  passenger  who  leaps  from  a  train,  either 

3  N.  W.  oli:;;    Limieluni  v.  Sampson,  12G  .Mas.s.  r.OO;    Hatf  v.  Railway 
Co..  14  Fed.  558;    Beuner  Livery  &  Uudertakiug  Co.  v.  Bussou,  58 

LU.  A  pp.  IT. 

2  1  Starkie.  493. 

rtStckt's  V.  Saltoustall  (18:!!))  i:;  IVt.  ISI;  In.-all.s  v.  I'.ills.  '.t  .M.'t.-. 
(Mas.^.)  1;  Fiiuk  v.  Potter.  IT  111.  4iMJ:  Kawn'iici'  v.  (Jn-i'ii.  T(i  Cal. 
41T.  11  Pac.  T50.  Wlicic  a  pa.ssenger  in  a  <  airiaj,^"  is  placed  in  ini 
niin.'Ut  peril  by  the  lunninj:  away  of  the  iinrscs.  and  tlie  driver  ealls 
on  her  to  jump  out,  the  (luestion  whether  she  is  ;,'iiilty  of  eontribiitory 
iie-lifreuce  in  doing  .so  is  for  the  jury.     Budd  v.  Carriage  Co.,  '27>  Or. 

ai4,  '^'j  Pae.  0130. 

(177) 


§  185  CARRIERS  OF  PASSENGERS.  (Oh.  li 

moving  *  or  stationary,^  to  escape  an  impending  col- 
lision, is  not  chargeable  with  negligence.  The  same 
rule  applies  to  passengers  on  street  cars.''  So  where  a 
car  has  been  derailed,  and  is  bouncing  along  the  ties 
at  a  rapid  rate,  a  passenger  is  not  chargeable  with  con- 
tributor^'  negligence  in  jumping  therefrom  to  escape 
the  apparent  danger."     So  a  passenger  standing  on  a 

4  Buel  V.  Railroad  Co.,  31  N.  Y.  314;  South  Western  R.  Co.  v. 
Paulk,  24  Ga.  35G. 

5  St.  Louis,  I.  M.  &  S.  liy.  v.  Maddry,  57  Ark.  300,  21  S.  W.  472: 
Iron  R.  Co.  v.  Mowery,  30  Ohio  St.  418.  W'here  a  freight  oar  runs 
down  grade  on  a  side  track  towards  the  main  track,  on  which  a 
passenger  train  is  standing,  and  a  cry,  ".luraiJ  for  your  lives'."  is 
raised  by  persons  observing  the  runaway  car,  and  the  passenger  train 
is  suddenly  started,  a  passenger  is  not  chargeable  with  contributory 
negligence  in  l-'aping  from  the  train  to  escape  the  apparently  imminent 
collision;  and  the  fact  tliat  the  engineer  succeeded  in  getting  the 
passenger  train  out  of  the  way  of  the  freight  car.  and  that  the  danger 
therefrom  was  not  real,  will  not  exonerate  the  carrier.  St.  Joseph  & 
G.  I.  R.  Co.  V.  Hedge,  44  Neb.  448,  02  N.  W.  887.  Where  a  pas- 
senger in  the  smoking  compartment  of  a  combination  smoking  and 
baggage  car  becomes  apprehensive  of  a  collision  with  a  train  which  hfr 
knows  is  past  due.  and  goes  into  the  baggage  car,  with  his  hand  on 
the  knob  of  the  door,  prepared  to  jump,  and  does  jump  just  before 
the  trains  collide,  the  fact  of  his  being  in  the  baggage  car,  in  viola- 
tion of  the  company's  rules,  does  not,  as  matter  of  law,  preclude  a 
recovery;  but  the  question  whether  he  conducted  himself  as  a  person 
of  ordinary  prudence  in  going  into  the  baggage  car  is  one  of  fact  for 
the  jury.     Cody  v.  Railroad  Co.,  151  Mass.  402,  24  N.  E.  402. 

<■■  Innninent  collision  between  street  cars.  South  Covington  &  C.  St. 
Ry.  Co.  V.  Ware,  S4  Ky.  207,  1  S.  W.  493;  Heath  v.  Railroad  Co.,  90 
Hun.  500,  30  X.  Y.  Supp.  22;  Avith  train  at  railway  crossing.  Bischoff 
V.  Railway  Co..  121  Mo.  210,  25  S.  W.  90«;  Holzab  v.  Railroad  Co., 
38  La.  Ann.  185;    Twomley  v.  Railroad  Co.,  09  N.  Y.  158. 

-'  Dimmitt  v.  Railroad  Co.,  40  Mo.  App.  <j54;  Pittsburgh,  B.  &  W.  R.. 
Co.  V.  Rohrman  (l»a.  Sup.)  13  Wkly.  Notes  Cas.  258;  Galena  &  C. 
U.  R.  Co.  V.  Yarwood,  15  111.  408,  17  111.  509;  Wilsun  v.  Railroad  Co.^ 
(4T8j 


(jh,    11)  CONTRIBUTORY   NEGLIGENCE.  §    185 

platform  awaitiii2;- the  arrival  of  a  train,  liaviiiii"  rcascii 
to  believe,  from  the  conduct  of  the  servants  of  the  rail- 
road company  and  passeui2,ers  standing-  there,  that  she 
is  in  imminent  peril  from  the  approach  of  a  train  in 
an  nnexpected  direction,  by  reason  of  the  misidace- 
ment  of  a  switch  throut;li  culpable  neolioeuce  of  the 
company's  servants,  is  not,  as  matter  of  law,  linilty  of 
negligence  in  running  away  to  escape  the  apprehended 
peril,  and  may  recover  for  injuries  sustained  while  so 
running.^     AVhere  a' boy  unfastens  the  brakes  of  a  de- 
tached passenger  car  standing  on  a  side  track,  and 
containing  a  number  of  passengers,  and  the  car  of  its 
own  momentum  runs  down  the  grade,  a  female  passen- 
ger, alarmed  at  the  rapid  rate  of  spee<l,  and  by  the 
absence  of  any  person  in  charge  of  the  car,  is  not  guilty 
of  contributory  negligence,  as  matter  of  law,  in  jump- 
ing therefrom.**      So  a  passenger  on  a  river  steamer 
which  is  in  danger  of  capsizing  by  reason  of  unskillful 
management,  and  the  cabins  of  which  are  already  tilled 

26  Minn.  278,  3  N.  W.  :V.V.',.  AVheie  the  horses  (h-awinjr  a  street  car 
are  runninjr  i'nvM.v.  and  there  is  imminent  danger  that  the  ear  will  be 
derailed,  and  thrown  over  an  embankment,  a  passenj^cr  is  not  chirge- 
able  with  contriliutory  negligence  in  jnmiiing  therefrom.  Dimmey  v. 
Railroad  Co.,  27  W.  Va.  ^2. 

«  Caswell  V.  RaiU-oad  Corp.,  OS  Mass.  11)4.  Wliere  an  intending 
passenger,  in  passing  over  the  railway  tracks  on  a  level  crossing,  sees 
a  train  approaching,  and  endeavors  to  jnn)p  across  the  track  onti»  the 
opiiosite  platform,  in  order  to  escape  the  train,  and  is  oanglit  be- 
tween it  and  the  platform,  and  snstains  injuries,  the  .inestion  whether 
be  is  guilty  of  contributory  negligence  is  for  the  Jury,  ti.ough  he 
would  not  have  heen  injun-d  had  he  remained  wl.eiv  he  was  when 
he  tirst  saw  the  train.     Wright  v.  Railway  Co.,  8  1..  K.  Ir.  ^.-.T. 

0  Western  Maiv  and  U.  Co.  v.  ller.ilil,  74  Md.  r.lO,  22  .Ml.  i'.J:",. 

U7U) 


§186  CARRIERS   OF   PASSENGERS.  (Ch.    11 

Avitli  Avater,  is  not  guilty  of  contributory  negligence  in 
leaping  overboard/'' 

On  the  other  liand,  failure  to  make  an  attempt  to 
escape  from  impending  ])eril  is  not  negligence,  if  plain- 
tiff is  so  confused  and  stupefied  by  the  danger  that  he 
has  lost  control  of  his  faculties."  So,  where  the 
brakes  on  a  detached  baggage  and  express  car  become 
loose,  and  the  car  starts  down  a  descending  grade,  the 
question  whether  the  express  messenger  is  guilty  of 
contributory  negligence  in  remaining  on  the  car,  and 
endeavoring  to  reset  the  brakes,  instead  of  jumping 
therefrom  while  it  is  still  moving  slowly,  is  for  the 
jury.^-  So  a  passenger  who  has  fallen  while  attempt- 
ing to  alight  from  a  street  car,  and  who  has  caught 
hold  of  the  railing  to  save  himself,  is  not  guilty  of  neg- 
ligence, as  matter  of  law,  in  retaining  his  hold,  and 
being  dragged  some  distance,  instead  of  releasing  his 
hold/^ 

§  186.     SAME— DEFENDANT  MUST  BE  GUILTY  OF 

NEaLIGENCE. 

To  warrant  a  recovery  for  injuries  sustained  in  an 
attempt  to  escape  from  an  impending  peril,  it  must  ap 
pear  that  the  peril  was  caused  by  defendant's  negli- 
gence.'    This  proposition  is  illustrated  by  the  case  of 
Chicago,  R.  I.  &  p.  Ky.  Co.  v.  Felton.-     A  passenger 

10  Ladd  V.  Foster,  31  Fed.  827. 

11  Walter  v.  llailroad  Co..  39  Iowa,  33. 

1 2  Union  Pac.  Ily.  Co.  v.  Kelley,  4  Colo.  App.  32.".,  3.j  Vac.  U2\. 

13  Knowltcn  v.  Railway  Co..  5i)  Wis.  2TS.  IS  X.  W.  17. 

§  ISG.     1  Biscliofe  V.  Itailway  Co.,  121  Mo.  21l;,  225,  25  S.  W.  008. 
2  125  111.  458,  17  N.  E.  7G5. 
(4S0) 


€h      11)  CONTRIBUTORY   NEGLIGENCE.  §    18G 

train  was  stalled  iu  a  suow  bank  in  the  nighttime. 
Some  of  the  passengers  in  the  rear  of  the  train  observed 
the  headlight  of  an  engine  coming  towards  them,  ap- 
parently on  the  same  track,  bnt  in  reality  on  another 
track.  The  Avhistle  on  the  passenger  train  was 
sonnded  several  times,  and  some  of  the  passengers, 
including  plaintiff's  intestate,  became  ahirmed,  left 
the  train,  and  were  struck,  on  a  parallel  track,  by  the 
approaching  engine  and  snowplow.  It  was  held  that 
the  railroad  company  was  not  liable,  because  it  had 
not  been  guilty  of  any  negligence.  So  the  fact  that 
a  passenger  on  a  street  car  may  not  have  been  guilty 
of  any  negligence  in  jumping  from  it,  under  the  be- 
lief that  a  collision  with  a  train  on  an  intersecting 
crossing  was  imminent,  will  not  render  the  street- 
railway  company  liable,  if  it  was  in  fact  not  guilty 
of  any  negligence  iu  the  matter.-'       So,  where  a  num- 

3  Dallas  Consolidated  Traction  Ky.  Co.  v.  Kandolph.  8  Tex.  Civ.  App. 
213,  27  S.  W.  92.5;  Kleiber  v.  Railway  Co.,  107  lMo.  240,  17  S.  W. 
04G.  Where  a  passenger  on  a  street  ear  is  brought  into  apparent 
imminent  danger  from  a  collision  at  a  railroad  crossing  by  the  neg- 
ligence of  the  motorman  in  attempting  to  cross  Avhen  he  could  see 
that  there  was  a  prol)ability  of  the  engine  reaching  there  first,  she 
can  recover  for  injuries  received  in  an  attempt  to  tlee  from  the  car. 
though  she  would  have  been  uninjured  if  slic  had  kept  her  seat; 
but  if  the  car  would  not  have  been  brouglit  into  such  danger,  except 
for  the  sudden,  unexpected,  and  unanticipated  obstruction  of  the  car 
by  a  Avagon.  then  there  would  be  no  liability  on  the  part  of  the  com- 
pany. .Shankeulery  v.  Itailway  Co.,  4(;  Fed.  177.  A  watchman  sta- 
tioned at  a  crossing  of  a  street  railroad  with  an  ordinary  steam  rail- 
n  ail  is  guilty  of  negligence  in  permitting  tin'  (bivcr  of  .-i  sircci  ciir 
to  drive  on  the  railroad  track,  and  in  then  closing  the  gate  while  tin- 
horses  are  on  the  track,  with  a  locomotive  approaching,  and  in  tlien 
ordering  the  driver  to  go  on,  iniiilying  that  a  despciate  alternative 
of  trying  to  cross  the  track  should  be  made;    and  the  railmad  com- 

V.  1  KET.CAR.PAS. 31  (.'^''^l) 


§18  6  CARRIERS   OF  PASSENGERS.  (Ch.    11 

ber  of  little  girls  get  on  a  train  which  is  being  switched 
on  a  side  track,  the  company  is  not  responsible  for 
injuries  sustained  by  them  in  jumping  from  the  train 
because  of  a  panic  created  by  an  unfounded  belief 
that  they  were  about  to  be  carried  to  a  distant  city.* 
So  a  false  alnrm  by  a  stranger  or  a  fellow  passen- 
ger, of  an  approaching  train,  does  not  authorize  a 
passenger  to  leap  from  his  stationary  train  to  the 
ground,  a  distance  of  10  feet,  without  looking  to  see 
w^hether  there  is  any  danger  from  the  approaching 
train,  which  had  been  flagged,  and  was  stopped  about 
100  yards  from  the  passenger  train/  But  the  con- 
duct of  a  brakeman  in  quickly  leaving  his  seat  on 
a  signal  from  the  locomotive  whistle,  and  hurriedly  set- 
ting a  brake,  and  in  crying  out  in  a  loud  voice,  "For 

paiiy  i.s  therefore  Ii:!l)le  for  injuries  to  a  passenger  on  a  street  car,  who 
jumped  therefrom  to  avoid  the  impending  collision.  Kleiber  v.  Rail- 
\vay  Co.,  107  Mo.  24<»,  17  S.  W.  946. 

4  Rearj-  v.  Railway  Co.,  40  La.  Ann.  32,  3  South.  390.  A  railroad 
company  is  not  liable  for  an  injury  resulting  from  a  passenger's 
grasping  the  hand  rail  of  a  moving  car,  on  evidence  that  he  was  so 
confused,  standing  between  the  moving  train  and  stationary  cars  on 
a  parallel  track,  that  his  act  Avas  involuntary,  where  such  position 
was  taken  by  him  without  necessity,  and  without  fault  of  the  rail- 
road company.  French  v.  Railway  Co.,  89  Mich.  537,  50  N.  W.  914. 
Some  of  the  machinery  of  a  locomotive  engine  broke,  and  water  anil 
steam  issued  from  the  engine.  It  entered  the  carriage  in  which 
plaintiff  was  riding.  Some  one  cried  out  that  the  train  was,  on  fire, 
and  plaintitf  became  alarmed,  and  jumped  from  the  carriage,  sus- 
taining injuries.  Held,  that  there  was  no  negligence  or  default  on 
defendant's  part,  and  hence  that  the  principle  that  a  passenger  placed 
by  the  misconduct  of  the  carrier  in  a  position  of  peril  may  adopt  the 
alternative  of  a  dangerous  leap  or  remain  at  his  peril  bad  no  applica- 
tion.    Kearney  v.  Railroad  Co.,  IS  L.  K.  Ir.  303. 

5  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Wallen,  G5  Tex.  568. 

(482) 


Ch.    11)  CONTRIBUTORY  NEGLIGENCE.  §    187 

God's  sake,  jump!"  is  exti'aordinary,  and  iKit  in  the 
Tisiial  performance  of  his  duties;  and  if  there  is  noth- 
ing in  the  situation,  or  its  appearance,  to  justify  such 
conduct,  it  is  negligence,  if  it  is  calculated  to  discon- 
cert the  passengers,  and  induce  them  to  believe,  as 
ordinarily  prudent  people,  that  danger  is  imminent.® 

§   187.     SAME— APPREHENSION  OF  DANGER  MUST  BE 

REASONABLE. 

On  the  one  hand,  the  injured  person  is  entitled  to 
act  on  the  appearance,  and  not  the  reality,  of  the  dan- 
ger; but,  on  the  other  hand,  the  appearance  of  danger 
must  be  such  as  is  calculated  to  alarm  a  person  of 
reasonable  prudence.  If  the  appearance  of  danger  is 
not  of  this  character,  the  injuries  sustained  in  attempt- 
ing to  escape  are  to  be  attributed  to  plaintiff's  own 
rashness  and  imprudence.  Thus,  a  jury  is  warranted 
in  finding  that  the  falling  of  lumber  against  a  caboose 
from  the  car  ahead  is  not  sufficient  to  alarm  a  reason- 
ably prudent  man,  so  as  to  cause  him  to  leap  from  the 
train  moving  at  full  speed,  and  that  a  passenger  who 
does  so  is  guilty  of  contributory  negligence.^ 

But  it  sliould  be  borne  in  mind  that,  on  occasions 
where  a  passenger  is  suddenly  confronted  by  iiiiiiiincnt 
danger  and  peril,  he  cannot  reasonably  be  expected  to 
calculate  chances,  or  to  deliberate  uixui  the  means  of 
escape,  but  must,  of  necessity,  judge  hastily  of  remain- 
ing where  he  is,  as  also  of  the  danger  of  attempting  to 

6  Ephlaiicl  V.   Kailway   Co..   37   Mo.  Api).  147.     As   to  aiiiliuiity  of 
servant  in  warniniL;  a^'ainst  peril,  see  post.  §  Rf>3. 
§  187.     1  Woolery  v.  Kailway  Co.,  1(»7  Intl.  381,  8  N.  E.  22(5. 

(4.s;{) 


it    187  CARRIERS   OF  PASSENGERS.  (Ch.    11 

escape,  bj  the  circumstances  as  they  at  the  instant 
appear  to  him,  and  not  by  the  result.  He  acts  upon 
the  probabilities  as  they  appear  to  him;  and  if  he  acts 
as  a  man  of  ordinary  prudence,  placed  in  the  same 
circumstances,  and  under  a  like  necessity  of  immediate 
action  and  decision,  would  have  acted,  and  in  so  doing 
makes  an  effort  to  escape,  and  is  injured,  the  railroad 
company  is  responsible  to  him  for  his  damages."  Thus 
where  a  collision  between  a  street  car  and  a  locomo- 
tiA'e  on  an  intersecting  track  is  apparently  imminent, 
and  the  car  and  horses  are  inclosed  between  the  gates 
across  the  railroad  track,  and  all  is  confusion,  excite- 
ment, and  terror,  a  passenger  is  not  chargeable  with 
negligence  in  jumping  from  the  street  car,  though  the 
locomotive  is  under  the  complete  control  of  the  en- 
gineer, is  barely  moving,  and  no  actual  danger  of  col- 
lision exists.^  So  wdiere  a  brakeman  in  the  lookout 
of  a  caboose,  on  a  signal  for  brakes  to  stop  the  train, 
excitedly  calls  to  passengers  in  the  caboose,  "Jump! 
jumjj  for  your  lives!"  a  passenger  who  knows  there 
is  a  train  on  the  track  ahead,  and  another  behind  his 
train,  is  not  chargeable  with  contributory  negligence 
in  leaping  from  the  moving  train,  without  stopping  to 
investigate,   although  there  is   no   danger   from   any 

2  St.  Louis  &  S.  F.  Ry.  Co.  v.  :MmTa.v.  55  Ark.  J4S.  18  S.  W.  50.  In 
this  ca.se  it  was  held  that  where  a  train  is  periuilted  to  reiuaiu  stall- 
ing on  the  track  in  the  nighttime,  a  passenger  in  the  rear  coach,  who 
sees  another  train  approaching  from  the  rear  on  the  same  track,  is 
justified  in  acting  on  the  appearance  of  danger,  and  in  leaving  the 
car,  though  the  employes  on  tlie  rear  train  were  on  the  lookout  for 
the  passenger  train,  and  were  able  to  stop  the  rear  train,  and  did  stop 
it,  Avitliout  a  collision. 

3  Kleiber  v.  Railway  Co.,  107  Mo.  240.  17  S.  W.  940. 

(484) 


C'h.    11)  CONTRIBUTORY   NEGLIGENCE.  §    18S 

source.*  Of  course,  the  right  to  escape  from  au  im- 
pending peril  is  not  restricted  to  cases  where  on  'V  life 
is  in  danger,  but  extends  to  cases  of  apparent  peril  of 
severe  bodily  injuries. ° 

§   188.     SAME— AVOIDING    INCONVENIENCE. 

As  a  general  rule,  a  passenger  is  not  justified  in  run- 
ning into  danger  of  life  or  limb  to  avoid  some  incon- 
venience to  which  he  has  been  subjected  by  the  car- 
rier; but  if  the  inconvenience  is  very  great,  iind  the 
danger  run  in  avoiding  it  very  slight,  it  may  not  be  un- 
reasonable to  incur  that  danger.^  Thus,  we  have  seen 
that  the  inconvenience  in  being  carried  beyond  a  pas- 
senger's station  does  not  authorize  him  to  put  his  life 
in  peril  by  leaping  from  a  rapidly  moving  train. ■  But 
a  passenger  who,  on  a  dark  niglit,  starts  to  leave  the 
train  without  delay,  and  finds  it  in  motion  when  sl»e 
gets  on  the  car  steps,  is  in  a  position  of  sudiU'ii  dan- 
ger, and  cannot  be  held  responsible  for  a  mistake  in 

*  McPeak  v.  Railway  Co.,  128  Mo.  CIT,  30  S.  W.  17(1.  Where  a 
brakoman  nofrligently  gives  a  fals>e  alarm  of  danger,  and  calls  out  in 
a  loud  voice,  ".Jump  for  your  livesl"  the  (luestiou  whetlier  a  jjasseuger 
acted  under  a  reasonable  apprehension  of  danger  must  be  determined 
by  the  circumstances  as  they  appeared  to  him.  And  iit  is  error  to  sub- 
mit to  the  jury  the  additional  fact  that  an  alarm  whistle  was  sonuded, 
which  the  passenger  did  not  hear.  Ephhmd  v.  Hail  way  Co..  57  Mql 
App.  147. 

5  La  Prelle  v.  Fordyce.  4  Tex.  Civ.  Ajip.  yui,  23  S.  W.  453. 

§  188.  1  Adams  v.  Railway  Co..  I>.  R.  4  C.  P..  730.  See.  also.  Siner 
V.  Railway  Co.,  L.  R.  3  Exch.  ITrC;  (;(•<•  v.  Railway  Co.,  L.  It.  S  Q. 
B.  101. 

2  Ante,  §  1,">1.  See,  also,  Railroad  Co.  v.  A.-p<';].  L'."!  i'a.  St.  147;  ]jike 
Shore  «&  M.  S.  Ry.  Co.  v.  Bangs.  47  Mich.  47(i,  11  \.  \V.  Ii7t;. 


§  188  CARRIERS  OF  PASSENGERS.  (Ch.  J  1 

judgment  in  stepping  from  the  car  without  any  con- 
scious effort  on  her  part  to  do  so.'  So  a  passenger  on 
a  street  car  who  is  put  in  peril  of  falling  off  by  the 
starting  of  the  car  w^hile  attempting  to  alight,  is  not 
guilty  of  contributory  negligence  in  jumping  from  the 
car,  if  a  person  of  ordinary  prudence  might  have  done 
the  same  thing.* 

In  an  English  case  it  was  held  that,  though  a  door 
to  a  railway  carriage  flies  open  as  the  result  of  the 
company's  negligence,  yet,  where  the  inconvenience 
suffered  by  the  passenger  from  the  open  door  would  be 
slight,  and  the  peril  incurred  in  an  attempt  to  shut  it 
considerable,  an  injury  sustained  in  falling  from  the 
carriage  while  making  the  attempt  cannot  be  consid- 

8  Legsett  V.  Railroad  Co.,  143  Pa.  St.  39,  21  Atl.  996.  A  female 
passenger  who  is  on  the  steps  of  a  car.  with  an  infant  in  her  arms, 
about  to  alight,  when  the  car  starts,  and  who  thus  has  the  perilous 
alternative  presented  to  her  either  to  remain  there,  and  run  the  risk  of 
being  thrown  from  the  train  as  it  accelerates  its  motion,  or  to  step 
from  the  train  before  it  increases  its  motion,  is,  not  chargeable  with 
contributory  negligence  in  stepping  from  the  car.  Odom  v.  Railroad 
Co.,  45  La.  Ann.  1201,  14  South.  734.  Where  a  train  starts  while  a 
passenger,  with  his  wife  and  children,  is  in  the  act  of  alighting,  and 
the  wife,  with  an  infant  in  her  arms,  is  thrown  to  the  ground,  the 
husband's  act  in  jum])ing  off  to  her  assistance,  and  leaving  his  other 
children  of  tender  years  on  the  car  platform,  and  the  act  of  one  of  surh 
children  in  attempting  to  jump  off  after  her  parents,  do  not  bar  recov- 
ery for  injuries  to  the  child.  The  acts  of  both  the  father  and  the 
child  were  the  direct  consequences  of  defendant's  own  misconduct, 
and  fall  within  the  well-settled  rule  that  contributory  negligence  can- 
not be  set  up  as  a  defense  when  such  negligence  is  the  result  of 
tremor  and  excitement  produced  by  defendant's  misconduct,  or  when 
the  latter  puts  the  plaintiff  to  a  sudden  election  between  the  course 
which  he  took,  or  submitting  to  a  grave  inconvenience.  Lehman  v. 
Railroad  Co..  37  La.  Ann.  70.j. 
4  Piper  V.  Railway  Co.,  .52  :^Iiun.  2(39.  53  N.  W.  1060. 

(486) 


Ch.    11)  CONTRIBUTORY   NEGLIGENCE.  §    ISS 

ered  as  the  immediate  consequence  of  defendant's  ne^- 
licence.^  In  an  American  case,  however,  it  was  held 
that  where  a  railroad  com]>:in.v  fails  to  furnish  any 
liiihts  while  a  train  is  passini;-  thron.uli  a  tunnel,  re- 
quiring six  or  seven  minutes'  time,  and  leaves  the  car 
door  open,  so  that  smoke  and  cinders  enter  in  great 
quantities,  to  the  inconvenience  of  passengers,  one  who 
sits  near  the  door  is  not  guilty  of  negligence,  as  mat- 
ter of  law,  in  making  a  careful  attem])t  to  shut  the 
door.''  So  where  a  passenger  car  overshoots  the  sta- 
tion platform,  and  the  alternative  is  presented  to  a 
female  passenger  either  of  jumping  to  the  ground, — 
a  distance  of  three  or  four  feet, — or  to  descend  by  step- 
ping on  the  bumper  or  connecting  link  at  the  rear  of 
the  car,  the  question  whether  she  was  guilty  of  con- 
tributor^^  negligence  in  choosing  the  latter  alternative, 
during  which  her  foot  was  crushed  by  a  movement  of 
the  train,  is  for  the  jury/ 

B  Adams  v.  Railway  Co.,  L.  R.  4  C.  P.  7:J!). 

6  Western  Maryland  R.  Co.  v.  Stanley.  (Jl  Md.  200. 

7  Johnson  v.  Railroad  Co..  11  Minn.  2!)(;  (Uil.  204).  Whore  the  train 
overshoots  the  station  platform,  and  no  intention  is  manifested  by  the 
train  hands  to  back  the  train,  and  the  alternative  is  presented  to  a 
female  passenger  of  getting  out  where  the  carriage  is,  or  of  being  car- 
ried on  to  the  next  station,  her  action  in  getting  out  is  not  such  an 
assumption  of  the  risk  as  will  prevent  recovery  for  injuries  sustained 
in  so  doing,  where  tlw^  danger  is  not  actual  or  obvious,  and  the  de- 
scent is  only  awkward  and  ditticult,  and  she  uses  due  care.  Nicholls 
V.  Railway  Co.,  Ir.  R.  7  C.  L.  40. 

(487) 


§189  CARRIERS   OF  PASSENGERS.  (Cll.    12 


CHAPTER  XII. 

CONTRIBUTORY  XEX^LKJENCE  (Couuinied)— PROXIMATE 

CAUSE. 

§  ISO.    Plaintiff'.^  Neijligence  must  be  a  Proximate  Caiise  of  Injury. 
190.    Defendant's  Negligence  after  Discovery  of  Plaintiff's  Peril. 

§    189.       PLAINTIFF'S     NEGLIGENCE      MUST      BE     A 
PROXIMATE  CAUSE  OF  INJURY. 

Contributory  negligence  does  not  defeat  a  recovery^ 
unless  it  is  a  proximate  cause  of  .the  injury. 

It  is  a  well-settled  principle  of  law  that  where  a  man 
negligently,  and  without  excuse,  places  himself  in  a 
position  of  known  danger,  and  thereby  suffers  an  in- 
jury at  the  hands  of  another,  either  wholly  or  partially 
by  means  of  his  own  act,  he  cannot  recover  damages, 
for  the  injury  sustained.  The  contributory  negligence 
which  prevents  recovery  for  an  injury,  however,  must 
be  such  as  co-operates  in  causing  the  injury,  and  with- 
out which  the  injury  would  not  have  happened.  The 
true  test  is  found  in  the  affirmative  of  the  question, 
did  the  plaintiff's  negligence  directly  contribute  in  any 
degree  to  the  production  of  the  injury  complained  of? 
If  it  did,  then  there  can  be  no  recovery;  if  it  did  not, 
it  is  not  to  be  considered.^      Thus  a  passenger's  negli- 

§  ISO.  1  Lehigh  Val.  R.  Co.  v.  Greiner,  113  Pa.  St.  600.  604,  6  Atl. 
246.  In  Thoiiipson  v.  Duncan.  76  Ala.  334.  it  was  held  that  negli- 
gence of  plaintiff  Avhich  contributes  '"in  any  way"  to  the  injury  does 
not  in  all  cases  bar  a  recovery.  It  must  conti'ihute  proximately  to 
the  injury.  In  Dougherty  v.  Railroad  Co..  !»7  Mo.  647,  11  S.  W.  2.">1„ 
(488) 


Cb.    12)  CONTRIBUTORY   NEGLIGENCE.  §    J  8i> 

gence  in  riding  on  the  platform  of  a  moving  train  -  or  of 
a  street  car  "'  does  not  affect  his  right  to  recover  for 
an  injury  suffered  in  properly  alighting  after  the  car 
has  stopped,  or  in  being  struck  by  the  train  after  he 
has  gotten  off.*      So,  where  a  passenger  has  establish- 

the  followinjr  iustruction  was  condemued  as  inconsistent  with  itsolf. 
and  as  aliolishinfj  the  doctrine  of  contributory  nejrlifience:  Negli- 
gence on  the  part  of  the  plaintiff  Avill  not  defeat  a  recovery  if  it  did 
not  conirilmte  or  cause  the  injury,  or  if  the  in.lury  wouhl  not 
have  happened  but  for  d?fpndaut's  negligence,  notwithstanding  p'ain- 
tiffs  negligence.  In  some  of  the  cases  it  is  intimated  iliat  plaintiffs 
negligence  will  not  bar  a  recovery  if  it  did  not  contribute  to  the  acci- 
dent, as  distinguished  from  the  injury.  Thirteenth  A:  F.  St.  P.  Ky. 
Co.  v.  Boudrou.  1)2  Ta.  St.  47.:..  It  is  hardly  necessary  to  say  that 
this  view  is  entirely  untenal)le.  IMaintiff  s  negligence  which  pr.ixi- 
mately  contributes  to  the  injury  bars  recovery.  Otherwise,  a  man 
riding  on  the  cowcatcher  of  a  locomotive  might  recover  for  injuries 
sustained  'in  a  collision  with  another  train,  du  the  ground  that  his 
presence  on  the  cowcatcher  did  not  contribute  to  the  colli-ion. 

2  Wood  V.  Railway  Co..  4!)  Mich.  :!70,  l.'i  X.  W.  77i»:    Van  Horn  v. 
Railroad  Co..  38  N.  J.  I.aw.  V.V.\. 

■■■  Omaha  H.  Ry.  Co.  v.  Doolittle,  7  Neb.  4S1;    Lax  v.  Railroad  Co.. 
4G  N.  Y.  Super.  Ct.  44S. 

4  Gadsden  &  A.  U.  Ry.  Co.  v.  Causlcr.  !t7  .Ma.  2:!.").  t2  South.  4:i0. 
Even  if  it  be  negligence  for  a  passenger  to  ride  on  ilu-  rear  platform 
of  a  street  car.  such  negligence  cannot  be  considered  as  the  ])roximate 
cause  of  an  injury  resu.wiig  from  being  struck  by  a  ]iole  of  a  folloAv- 
ing  car.  Thirteenth  iK:  F.  St.  P.  Ry.  Co.  v.  Boudrou,  1)2  Pa.  St.  475. 
Riding  on  the  platform  of  a  street  car  is  no't  the  proximate  cause 
of  a  passenger's  death,  who  was  struck  by  a  derrick,  .-igainst  the  guy 
rope  of  which  the  car  was  negligently  driven.  Hunt  v.  Railroad  Co.. 
14  :Mo.  App.  ](jf).  In  this  case  the  court  said:  "It  is  claimed  that  if 
the  passenger  had  been  seated  within  the  car.  instead  of  standing  on 
the  rear  plnirnrni.  he  would  not  have  been  slrmk  by  llic  latal  der- 
rick. If  this  l)e  good  reasoning,  then  every  uunirtnnate  who  was 
ever  blown  up  in  a  steamboat  cxi)losion  was  guiliy  of  contributory 
negligence  in  going  on  the  boat,  or  in  being  within  reach  of  the  boiler. 
Had  he  stayed  on  .shore,  or  had  he  occupied  some  nihcr  pari  (it  ihr 

(4JSiJ) 


§    189  CARRIERS   OF  PASSENGERS.  (Ch.    12 

ed  himself  safely  on  the  car  steps,  his  negligence  in 
boarding  the  train  while  in  motion  is  not  the  proximate 
cause  of  injuries  sustained  in  being  pushed  or  pulled 
therefrom  bj'  one  of  the  company's  employes.^  So  the 
act  of  a  passenger  in  boarding  a  moving  train  is  not, 
as  matter  of  law,  the  proximate  cause  of  an  injury, 
Tviiere  the  train  gave  a  sudden  jerk  after  he  had  got- 
ten on  the  car  platform,  and  he  was  throw^n  off.*^  The 
act  of  a  passenger  in  leaving  an  elevated  train  before 
it  reaches  the  station,  on  the  invitation  of  the  conduct- 
or, even  if  it  is  negligent,  is  not  the  proximate  cause 
of  an  injury  resulting  from  the  train's  starting  up 
while  there  are  50  such  passengers  on  the  track,  who 
became  panic  stricken,  and,  in  their  fright,  crow^ded 
each  other  off  the  track,  causing  some  to  fall  to  the 

boat,  he  might  have  been  safe."  AVhere  a  passenger  is  injured  in 
an  attempt  to  escape  from  a  street  car,  the  horses  on  which  have  be- 
come frightened  or  ungovernable,  and  pulled  the  car  off  the  track,  the 
fact  that  she  was  riding  on  the  front  platform  cannot  be  said  to  be 
the  proximate  cause  of  the  accident,  so  as  to  bar  a  recovery  on  thc^ 
ground  of  contributory  negligence.  Noble  v.  Railroad  Co.,  98  Mich. 
249,  57  N.  W.  120. 

5  Sharrer  v.  Paxson,  171  Pa.  St.  26,  33  Atl.  120;  Harrold  v.  Railway 
Co.,  47  Minn.  17,  49  N.  W.  389;  Pennsylvania  R.  Co.  v.  Reed,  9  C. 
C.  A.  216,  60  Fed.  694,  attirming  oQ  Fed.  184.  The  getting  on  board 
of  a  moving  train  is  not  the  proximate  cause  of  an  injury  sustained 
in  being  forced  from  the  train  by  water  thrown  in  such  person's  face 
by  one  of  tlie  train  hands.  Clark  v.  Railroad  Co.,  40  Hun,  605.  The 
wrongful  act  of  a  boy  in  boarding  a  moving  train,  with  the  intention 
of  stealing  a  ride,  is  not  the  proximate  cau.se  of  an  injury  sustained  in 
being  ejected  from  the  moving  train  after  his  entry  had  become  an 
.accomplis,hed  fact.     Kline  v.  Railroad  Co.,  37  Cal.  400. 

6  Distler  v.  Railroad  Co..  151  N.  Y.  424,  45  N.  E.  937,  reversing  78 
Hun,  252,  28  N.  Y.  Supp.  805. 

(490)  * 


Ch.    12)  CONTRIBUTORY  NEGLIGENCE.  §    189 

pavement  beneath.''  So  tlie  mere  fact  tliai  a  passen- 
oer  on  a  street  car  alights  when  the  car  stops  before 
making-  a  street  crossing,  instead  of  waiting  nntil  it 
has  reached  the  phice  at  which  passengers  nsnally 
alight,  is  not  the  proximate  canse  of  an  injnry  sus- 
tained by  her  dress  catching  in  a  projecting  bolt  of  the 
car.*  So  the  unlawful  act  of  the  owner  of  a  freight 
car  in  persuading  the  companj-'s  employes  to  attach 
it  to  a  passenger  train,  in  violation  of  the  company's 
rules,  is  not  the  proximate  cause  of  an  injury  to  the 
owner  resulting  from  a  collision  of  the  train  with  an 
animal  on  the  track."  So  the  fact  that  a  train  was 
delayed  25  minutes  at  its  starting  point,  to  enable  a 
drover  to  load  his  cattle,  is  not  such  contributory  neg- 
ligence on  the  part  of  the  drover  as  will  prevent  his 

T  W^eiler  v.  Railway  Co.,  53  Hun,  .372,  6  N.  Y.  Supi).  320.  affirmed  in 
127  X.  Y.  669,  28  X.  E.  255.  Leaviug  a  moviujr  train  is  not  the  proxi- 
mate cause  of  an  injury  sustained  in  beinj?  struck  by  another  train 
while  crossing  a  parallel  track.  Van  Ostrau  v.  Railroad  Co.,  35  llun. 
590. 

8  Xorth  Chicago  St.  R.  Co.  v.  Eldridge.  1.31  111.  .-542,  38  N.  E.  240. 

9  Lackawanna  &  B.  R.  Co.  v.  Cheuewith,  52  Pa.  St.  382.  The  lourt 
said:  -it  has  Ixen  sugg(>s,tc(l  that,  if  the  car  had  not  been  attached, 
the  plaintifE  would  not  have  been  injurel.  Doubtless  this  is  true, 
and  it  is  true  of  every  injury.  In  all  cases,  if  the  party  injured  liad 
been  absent,  it  is  presumable  he  would  not  have  l)een  injured  by  tlic 
agency  operating.  The  voluntary  presence  of  tlie  traveler,  if  not 
wrongful,  is  so  much  a  matter  of  individual  clioice  that  its  propriety 
is  never  an  element  to  be  inquired  into  in  claiming  or  resisting  dam- 
ages for  injury.  I'eople  have  a  right  to  travel  -when  they  please, 
and  will  be  compensated  for  injuries  if  occasioned  by  (lie  negligence 
of  those  engaged  in  transporting  them,  if  they  have  not  contributed 
to  the  immediate  disaster  l)y  their  own  negligence,  whah'vcr  ndghi 
be  said  against  the  pm;  riety  of  tlieir  journeying." 

(4'Jl) 


§  189  CARRIERS  OF  PASSENGERS.  (Ch,  12 

recovering  for  injuries  snstained  in  a  collision,  while 
on  the  journey,  with  another  freight  train,  which  over- 
took the  one  on  which  he  was  riding/" 

One  of  the  tests  by  which  to  determine  whether 
plaintiff's  negligence  is  a  proximate  cause  of  his  injnry 
is  this:  If  defendant's  negligence  would  have  caused 
the  injury  if  plaintiff  had  been  in  no  wise  negligent, 
then  the  fact  that  he  was  negligent  Avill  not  defeat  a 
recovery.  "It  is  now  well  settled  that  a  passenger  on 
a  railroad  train,  who  is  injured  by  the  negligence  of 
the  railroad  company,  is  not  debarred  from  a  right  to 
a  recovery  because  he  was,  at  the  time  of  receiving  the 
injury,  negligently  riding  on  the  platform  of  a  car,  or 
in  some  other  exposed  or  dangerous  position,  if  such 
action  on  his  part  did  not  contribute  in  any  degree 
to  the  accident  or  his  injury.  If  the  accident  which 
occasioned  the  injury  would  have  happened,  and  would 
have  been  attended  with  the  same  results  to  the  pas- 
senger, if  he  had  been  in  his  proper  place  on  the  train, 
then  his  negligence  is  not  contributory  negligence,  in 
a  sense  that  would  preclude  recovery,  because  it  in  no 

10  Fliun  V.  Railroad  Co.,  1  Honat.  (Del.)  4(JJJ.  503.  "It  wa.s  entirely 
optional  with  the  company's  .><ervants  whether  ihey  detained  the  train 
or  left  at  the  regular  and  appointed  time;  and  if  they  chose  to  wait 
till  the  plaintiff's  stock  was  put  on  board,  it  was  their  own  voluntary 
act.  and  they  cannot,  by  reason  of  it,  exempt  themselves  from  the 
liability  which  would  have  rested  upon  them  had  they  made  their  de- 
parture at  the  regular  and  appointed  time."  The  fact  that  a  passen- 
ger is  suffering  from  rheumatis,ni  will  not  preclude  a  recovery  for 
injuries  sustained  in  a  collision  with  another  train.  Even  if  it  be 
conceded  that  an  intirm  passenger  is  guilty  of  contributory  negligence 
in  going  on  a  journey,  such  negligence  is  not  the  proximate  cause  of 
the  injury.  Shenandoah  Val.  R.  Co.  v.  Moose,  S3  Va.  S27,  3  S.  E.  79G. 
(492) 


Ch.    12)  CONTRIBUTORY   NEGLIGENCE.  §    189 

manner  or  decree  contributed  to  the  injury,  and  is 
therefore  wantinp:  in  the  element  of  proximate  cause 
essential   to   constitute   contributory   neuliii'eiice  that 


■}-<^ 


will  bar  a  recovery."  ^^  So,  where  the  smoking  com- 
partment of  a  combination  smokina;  and  baiigage  car 
is  crowded  with  ])assen<>ers,  a  ])assenger,  unable  to 
obtain  a  seat,  who  goes  into  the  baggage  com])art- 
meut,  with  permission  of  defendant's  em])loyes,  is  not 
guilt}'  of  contributory  negligence  whirh  defeats  a  re- 
covery for  injuries  sustained  in  a  rear-end  collision, 
though  a  rule  of  the  company,  of  which  he  is  ig- 
norant, prohibits  passengers  from  riding  in  the  bag- 
gage compartment/"  So  the  negligence  of  a  passeu- 
ger  in  permitting  his  arm  to  slightly  protrude  out  of 
the  window  is  not  the  proximate  cause  of  an  injury 
which  would  have  happened  had  his  arm  been  entirely 
inside.^^ 

11  Kansas  &  A.  V.  Ry.  Co.  v.  White.  14  C.  C.  A.  483,  G7  Fed.  4Sl. 

12  New  York.  L.  E.  &  W.  R.  Co.  v.  Ball.  ^,:^  N.  J.  'Law,  283,  21  Atl. 
1052.     See,  also,  ante,  §  171. 

i>  Carrico  v.  Railway  Co.,  3t)  W.  Va.  8G,  1!)  S.  K.  .ITl.  In  the  lol- 
lowing  oases  plaintiff's  nesligenee  was  lielil  the  proximate  cause  of  his 
injuries:  A  railroad  company  carried  a  passenger  beyond  his  desti- 
nation, and  put  him  off  at  one  end  of  a  trestle,  and  his  gun  at  the 
other  end.  He  crossed  to  get  the  gun.  and  gnt  his  fi-et  mmldy  w  lieu 
he  stepped  from  the  trestle  to  the  embankment.  In  recrossiiig  the 
trestle,  his  foot  slipped  by  reason  of  this  mud,  and  he  was  injured. 
Il'dd.that  the  prf)ximate  cause  of  his  injury  was  his  own  neg  i;,'eni  e  in 
attempting  to  cross  the  bridge  with  his  muddy  boots,  and  the  cnm- 
pany  was  not  liable.  International  iV:  G.  N.  R.  Co.  v.  Folliard.  0'> 
Tex.  (H)3,  1  S.  W.  G24.  A  lire  I)roke  out  in  a  passenger  car  ihiDUiiii 
the  negligence  of  the  company's  servants,  riaintiff,  a  passenger, 
.after  having  tried  from  that  car  to  signal  the  engineer  to  stop,  and 
having  failed  1)C(  ause  the  bell  rope  did  not  work,  went  into  the  smok- 
ing car  for  tliat  purpose.     There  he  nirlilicd  the  conductor  of  (lie  uc- 


§  190  '  CARRIERS  OP  PASSENGERS.  (Ch.  12 

§  190.     DEFENDANT'S  NEGLIGENCE  AFTER  DISCOV- 
ERY OF  PLAINTIFF'S  PERIL. 

Contributory  negligence  does  not  bar  a  recovery, 
if  defendant,  after  becoming  a-ware  of  plaintiflTs 
danger,  fails  to  exercise  due  care,  in  the  cir- 
cumstances, to  avoid  harm. 

In  the  circumstances  above  stated,  the  contributory 
negligence  of  the  injured  person  is  not  the  proximate 
cause  of  the  injury,  but  the  negligence  of  defendant, 
being  the  later  negligence,  is  the  sole  proximate  cause. 
As  has  been  said  by  one  of  the  text  writers  on  this  sub- 
ject: "The  party  who  has  a  last  clear  opportunity  of 
avoiding  the  accident,  notwithstanding  the  negligence 
of  his  opponent,  is  considered  solely  responsible."  ^ 
The  rule  may  also  be  upheld  on  another  ground:  A 
failure  to  exercise  ordinary  care  by  a  defendant  in  such 
circumstances  amounts  to  a  degree  of  reckless  con- 
duct that  may  well  be  termed  willful  and  wanton; 
and  when  an  act  is  done  willfully  and  wantonly,  con- 

ciilent,  and  then  went  back  to  the  burning  car  to  get  his  valise.  He 
was  prevented  from  setting  ont  of  that  car  by  the  fire,  and  was  se- 
verely burned.  Held,  that  his  voluntary  act  of  returning  to  the 
burning  car  was  tlie  proximate  cause  of  his  injuries,  and  prevented 
recovery,  as  matter  of  laAv.  Hay  v.  Railway  Co.,  37  U.  C.  Q.  B.  450. 
Where  the  defense  is,  that  plaintiff  .iumped  from  a  moving  train,  it 
is  error  to  instruct  that,  if  his  negligence  was  not  the  proximate 
cause  of  his  injuries,  he  could  recover,  since,  if  he  was  injured  by 
jiimplng  from  the  moving  train,  his  act  was  the  immediate  cause  of 
his  injury,  and  hence  there  was  no  question  of  proximate  cause  in 
the  case.  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Rowland  (Tex.  Sup.)  38  S.  W. 
75(j. 
§  1J10.  1  Shear.  &  R.  Neg.  §  90. 
(494) 


Ch.    12)  CONTRIBUTORY   NEGLIGENCE.  §    190 

tribiitory  nej;ligence  on  the  part  of  the  person  injured 
is  not  an  element  which  will  defeat  a  recovery. - 

The  pioneer  case  on  this  subject  is  the  famous  "don- 
key case"  of  Davies  v.  Mann.^  There  plaintitT  had 
neiiliiientlv  turned  his  donkey  loose  on  a  hiuhwav,  with 
his  forefeet  fettered,  and  it  was  run  over  in  broad  day- 
lij>ht  by  defendant's  wagon,  driven  at  an  imprctper  rate 
of  speed.  Plaintiff  recovered,  notwithstanding  his  an- 
tecedent negligence,  since  defendant's  driver,  by  prop- 
er care,  could  have  avoided  the  accident.  Tliis  case 
has  been  uniformlv  followed  in  the  Enulish  courts,* 
though  it  has  been  the  subject  of  considerable,  if  not 
alwavs  wise,  criticism  bv  American  text  writers.  The 
principle  is,  however,  fully  recognized  by  the  American 
courts,  and  has  often  been  applied  in  the  decision  of 
passenger   cases.^      Thus,   though   a  person   may   be 

2  p:srey  v.  Pacific  Co.,  103  Cal.  541,  37  Tac.  500;  Id.,  SS  (.'al.  399. 
2G  rac.  211. 

3  (1SJ2)  10  Mees.  &  W.  540. 

4  In  Tuff  V.  Warman  (1858)  5  C.  H.  (X.  S.)  573,  585.  it  was  said: 
"Mere  negligence  or  want  of  onlinary  cari'  and  cauiion  w.mld  nut. 
however,  disentitle  plaintiff  to  recover,  unless  it  were  such  that,  but 
for  that  negligenc-e  or  want  of  ordinary  care  and  caution,  the  mis- 
fortune could  not  have  happened;  nor  if  the  defendant  might,  by  the 
exercise  of  care  on  his  part,  have  avoided  the  conse(iuence  of  the 
neglect  or  carelessness  of  the  plaintiff."  In  KadU-y  v.  Railway  Co., 
1  App.  Cas,.  754.  it  is  said:  "Though  plaintiff  may  have  been  guilty 
of  negligence,  and  although  that  negligence  may  in  fact  have  contrib- 
uted to  the  accident  which  is  the  subject  of  the  action,  yet.  if  the 
defendant  could,  in  the  result,  by  the  exercise  of  ordiiiaiy  can'  and 
diligence,  have  avoided  the  mischief  which  happened,  the  iilaiiiiilTs 
negligence  will  M(jt  excuse  liim." 

&  "The  rule  is  that  contributory  negligence  on  the  part  of  plaintiff 
will  not  disentitle  plaintiff  to  r< cover,  if  it  appears  that  defendant 
might,  by  the  exercise  of  reasohalile  care  and  prudence,  have  av<iid»'d 

(41).-) 


§  190  CARRIERS  OF  PASSENGERS.  (Ch.  12 

guilty  of  contributory  negligence  in  attempting  to 
board  a  street  car  moving  at  full  speed,  yet  where  he 
is  dragged  some  1(50  feet  before  the  car  is  stopped,  he 
ma}^  recover  for  the  injuries  thereby  sustained,  if  the 
driver  could  have  avoided  the  injuiy  by  the  exercise 
of  reasonable  care  in  stopping  the  car  after  he  was 
notified  that  plaintiff  had  fallen  and  was  being  drag- 
ged by  the  car.*'      So,  the  negligence  of  a  passenger  in 

the  consequences  of  plaintifl"s  negligence.  That  rule  is  but  a  state- 
ment, in  another  form,  of  the  proposition  that  antecedent  misconduct 
or  negligence  on  the  part  of  the  plaintiff,  such  as  could  not  have  had 
any  influence  upon  the  conduct  of  defendant,  will  not  defeat  recovery 
for  injuries  inflicted  by  the  immediate  negligence  of  defendant.  It  is 
a  misuse  of  terms  to  speak  of  such  negligence  as  contributory  negli- 
gence." Pennsylvania  R.  Co.  v.  Reed,  9  C.  C.  A.  219,  60  Fed.  694. 
See,  also,  Carrico  v.  Railroad  Co.,  35  \v'.  Va.  ."jSU.  14  S.  E.  12. 

6  W^oodward  v.  Railway  Co.,  71  Wis.  625,  ;^8  N.  W.  347.  A  similar 
case,  decided  the  same  way,  is  Chicago  "W.  D.  Ry.  Co.  v.  Hughes,  69 
III.  170.  ThoiTgh  a  plaintitf  may  be  guilty  of  negligence  in  attempt- 
ing to  board  a  slowly  moving  train  at  a  station  at  which  it  has  not 
iDeen  brought  to  a  full  stn[i.  or  in  holding  onto  the  railing  of  the  steps, 
and  keeping  pace  with  the  train,  yet.  if  the  danger  might  have  been 
avoided  by  due  care  on  the  part  of  defendant's  employes  after  they 
discovered  the  peril,  or  if  the  injury  would  not  have  been  inflicted 
but  for  their  atiirmative  act  in  negligently  increas,ing  the  speed  of 
the  train,  knowing  that  thereby  plaintiff's  safety  would  be  imperiled, 
-as  they  must  be  holdeu  to  have  kiioAvn,  the  company  Is  liable,  not- 
withstanding plaintiff's  own  original  negligence.  Montgomery  &  E. 
R.  Co.  V.  .Stewart,  91  Ala.  421,  S  South.  708.  Where  a  conductor 
agrees  to  slack  up  a  train  to  enable  a  passenger  to  get  off,  and  in  re- 
liance on  such  promise  the  passenger  steps,  from  the  train,  but  retains 
his  hold  on  the  car  when  he  flnds  that  the  train  is  moving  too  rapidly, 
in  the  hope  that  the  speed  will  be  lessened,  and  the  conductor  dis- 
covers him  in  this  situation,  and  increases  the  speed,  the  company  is 
liable  for  the  injuries  sustained  in  a  fall  to  the  ground.  Central  R. 
Co.  V.  Smith,  69  Ga.  268.  The  contributory  negligence  of  a  passenger 
in  standing  dangerously  near  the  track  at  a  station,  at  a  point  where 
(49Gj 


Ch.    12)  CONTRIBUTORY   NEGLIGENCE.  §    190 

Stepping-  or  falling;  from  the  platform  of  a  rear  car  will 
not  preclude  recovery  for  his  death,  caused  by  being 
struck  by  another  train  while  lying  helpless  on  the 
track,  where  the  employes  of  the  first  train  had  notice 
that  a  passenger  had  fallen  therefrom,  but  did  not  stop 
to  remove  him  from  the  track,  or  notify  the  second 
train  by  telegraph  of  the  fact,  or  adopt  any  precaution 
to  avoid  injuring  him.'  So  it  has  been  held  that  con- 
tributory negligence  of  a  passenger  on  a  street  car  in 
protruding  his  arm  beyond  the  exterior  surface  of  the 
car  will  not  defeat  recovery  for  injuries  received  in 
striking  a  bridge,  where  the  conductor,  on  seeing  the 
passenger's  perilous  position,  failed  to  warn  him  of  the 
danger.* 

the  only  avenue  of  escape  is  across  the  track,  is  no  defense  where 
the  direct  cause  of  the  accident  is  the  omission  of  the  employes  of  an 
approaching  train,  after  Isecomiug  aware  of  the  passenger's  danger, 
to  use  a  proper  degree  of  care  to  avoid  the  consequences  thereof:  as 
by  warning  him  of  the  train's  approach,  or  stopping  the  Train.  Little 
Rock  &  Ft.  S.  Ry.  Co.  v.  Cavenesse,  48  Ark.  lOt!,  2  S.  W.  ."in.-.. 

-  Railroad  Co.  v.  Kassen.  49  Ohio  St.  2:V).  .'U  N.  E.  I'S'J.  Where 
a  passenger  on  a  river  steamer  falls  overboard,  the  failure  of  the 
boat  to  stop  to  pick  him  up  after  the  dfficers  know  that  he  has  fallen 
overboard  is  such  negligence  as  will  render  the  carrier  liable  lor  his 
death  by  drowning,  though  his  own  negligence  contributed  to  his  fall- 
ing overboard.  Melhado  v.  Transportation  Co..  27  Hun.  00.  A  pas- 
senger, having  hailed  a  street  car,  proceeded  across  a  i)arallel  track, 
and.  as  he  was  about  to  get  on  board,  was  run  over  in  broad  day- 
light by  a  car  on  a  parallel  track,  whidi  was  more  ili.m  :;im>  feel 
away  when  he  started  to  cross  the  track.  Hell,  iliai  the  failure  ..f 
the  driver  to  stop  the  car,  after  becoming  aware  of  i)laiut ill's  |.erilous 
position,  was  the  proximate  cau.se  of  the  accident,  and  that  there- 
fore plaintiff's  contrilmtory  negligence  did  not  bar  a  recovery.  Fcr- 
wood  V.  City  of  Toronto,  22  Onl.  :!.'.!. 

8  South  Covington  &  C.  St.  Ky.  Co.  v.  McCleave  (Ky.)  :!S  S.  W.  Wruy. 

V.  1   l-KT.C.Mt.PAS.— 32  C'l'J^) 


§190  CARRIERS   OF  PASSENGERS.  (Ch.    12 

But  the  rule  is  properly  applied  ouly  in  those  cases 
where  plaintiff's  negligence  was  the  remote,  and  not 
the  proximate,  cause  of  the  injury;  that  is,  where  the 
negligent  acts  of  the  parties  were  independent  of  each 
other,  the  act  of  the  person  injured  preceding  that  of 
defendant.  This  principle  cannot  govern  where  both 
parties  are  contemporaneously  and  actively  in  fault, 
and  by  their  mutual  carelessness  an  injury  comes  to 
one  or  both  of  them.°  Hence  the  failure  of  a  railroad 
engineer  to  sound  the  alarm  whistle  on  seeing  a  person 
near  the  track  does  not  render  the  company  liable  for 
his  death,  where  he  ste})ped  on  the  track  a  few  feet  in 
front  of  the  engine,  Avithout  looking  or  listening  for 
the  api)roach  of  the  train,  since  the  deceased  himself 
could  have  prevented  the  accident  by  the  exercise  of 
ordinary  care.^°  So  the  rule  does  not  apply  to  the 
case  of  a  passenger  riding  on  the  locomotive  against 
the  rules  of  the  company,  who  was  injured  in  a  colli- 
sion with  another  train,  though  the  employes  of  the 
train  on  which  he  was  riding  knew  of  his  position/^ 

Of  course,  no  liability  attaches  to  defendant  if,  after 
discovering  plaintiff's  peril,  he  exercises  due  care  to 
avoid  the  injury.  Thus,  where  a  person  negligently 
steps  backward  on  a  street-car  track,  10  or  15  feet  in 
front  of  an  approaching  cable  car,  the  employes  of  the 
cable  company  are  not  guilty  of  negligence  after  dis- 
covering plaintiff's  i)eril,  if  they  make  an  effort  in  good 

«  Holmes  v.  Railway  Co.,  97  Cal.  161,  31  Pac.  384. 

10  Id. 

11  Downey  v.  Railway  Co.,  28  W.  Va.  732. 

(498) 


Cll     12)  CONTRIBUTORY   NEGLIGENCE.  §    1^0 

faith  to  stop  the  car,  and  actually  stop  it  within  one 
foot  of  the  point  of  collision  with  plaintiff.'- 

Another  question  that  arises  in  this  connectic^i  is 
this:      Must  defendant  actually  have  discovered  the 
peril  to  which  plaintiff  has  exposed  himself  by  his  own 
neiilioence,  or  is  it  sufficient  that  defendant  ought  to 
have  discovered  it  by  the  exercise  of  reasonable  care? 
As  a  general  proposition,  it  would  seem  that  defendant 
ought  to  have  actual  knowledge  of  plaintiff's  danger, 
since  no  one  is  bound  to  anticipate  another's  negli- 
gence/^     Thus,  where  a  passenger  negligently  places 
his  finger  in  the  jamb  of  an  open  door,  a  brakeman  is 
not  chargeable  with  negligence  in  closing  the  door 
without  ascertaining  the  dangerous  position  of  plain- 
tiff's finger,  though  it  would  be  otherwise  if  he  had 
known  this  fact.     "If  it  had  been  the  duty  of  the  brake- 
man  to  see  that  the  plaintiff  was  taking  proper  care  of 
himself,  the  fact  that  he  should  have  discovered  the 
danger  would  have  been  material.      But  such  was  not 

12  Bailey  v.  Railway  Co.,  110  Cal.  :'.20.  42  Pac.  914.  Where  a  pas- 
senger riding  on  the  driving  bar  of  a  street  car  falls  off  backward,  and 
the  driver  makes  every  effort  to  rescue  the  falling  man.  and  stops 
his  car  as  soon  as  he  can.  the  rule  that  a  defendant,  after  discovering 
plaintiff's  peril,  caused  by  his  own  negligence,  is  bound  to  exercise 
due  care  to  avoid  injuring  him,  is  fully  satisfied.  Downey  v.  Hendrie, 
4G  Mich.  408.  0  N.  W.  S2S. 

13  I'laiutift'  in  an  action  for  personal  injuries,  who  seeks  to  escape 
the  consequences  of  his  own  negligence  upon  the  ground  tliat  tlie  in- 
jury complained  of  was  caused  1)y  the  recklessness  and  willful  neg- 
ligence of  defendant,  must  show  that  defendant  had  actual  kin)wl- 
edge  of  plaintiff's  danger,  and  could,  by  tlie  exercise  of  ordinary  »-are 
and  prudence,  have  avoided  the  resulting  injury-  Ki<hnioiid  i<c  D. 
R.  Co.  V.  Didzoneit,  1  App.  D.  C.  4S2,  See,  also,  HoIoIimm  v.  Railroad 
Co.,  8  Mackey  (D.  C.)  310. 

(499) 


§  190  CARRIERS  OF  PASSENGERS.  (Ch.  12 

the  brakeman's  duty.  He  had  the  ri^ht  to  presume 
that  the  plaintiff  was  conducting  himself  with  pru- 
dence, and  it  was  not  his  duty  to  see  that  such  w^as  the 
fact."  ^*  Circumstances,  however,  may  exist  where 
defendant  will  be  held  liable,  on  the  ground  that  he 
ought  to  have  discovered  plaintiff's  peril  by  the  exer- 
cise of  reasonable  care,  though  he  did  not  in  fact  know 
it.  A  passenger  who  was  compelled  to  ride  on  the 
front  platform  of  a  crowded  street  car  was  asked  by 
the  driver  to  assist  in  getting  the  car  back  on  the 
track.  After  doing  so,  he  attempted  to  get  back  on 
the  platform  by  climbing  over  a  railing  three  feet  high; 
and,  while  he  was  doing  so,  the  driver  started  the  car 
without  signal  or  warning,  and  the  passenger  was 
thrown  under  the  car.  It  was  held  that,  though  he 
might  have  been  guilty  of  negligence,  yet  it  was  a 
question  for  the  jury  whether,  in  the  exercise  of  proper 
care,  the  driver  might  have  seen  plaintiff's  dangerous 
position,  and  thereby  have  avoided  the  injury.^" 


L5 


14  Texa.s  l\:  V.  Ry.  Co.  v.  Overall.  82  Tex.  247,  18  S.  W.  142.  A  train 
approaching  a  flag  .«ra1ion  at  night  was  signaled  by  a  bystander,  but 
it  did  not  come  to  a  stop  until  it  had  passed  the  station  platform  l)y 
about  200  feet.  An  intending  passenger  ran  along  the  track  to  reach 
the  train,  and  was  run  over  by  it  while  backing  towards  the  station: 
he  having  been  unable  to  notice  its  movement  on  account  of  the 
darkness.  Held  that,  in  the  absence  of  evidence  that  the  trainmen 
had  reason  to  believe  the  passenger  to  be  on  the  track,  there  was  no 
room  for  the  application  of  the  rule  that  his  contributory  negligence 
in  running  along  the  track  would  be  no  defense  if  the  train  hands, 
by  the  exercise  of  reasonable  care,  could  have  avoided  running  over 
him.      St.  Louis  &  S.  F.  R.  Co.  v.  Whittle.  20  C.  C.  A.  19G,  74  Fed.  20t;. 

15  People's  Passenger  Ry.  Co.  v.  Green,  56  Md.  84.  The  court  said: 
"In  answer  to  this,  it  may  be  said  there  was  no  obligation  upon  the 
driver  to  look  after,  or  to  exercise  any  care  and  prudence  in  regard  to, 

(500) 


Ch.    12)  CONTRIBUTORY   NEGLIGENCE  §    190 

persons  attomptinjr  to  board  the  car  by  the  front  iilatforni.  biN-ause 
siuli  persons  had  no  rijiht  to  enter  the  car  in  that  direction.  Ordi- 
narily, this  would  be  true;  but,  under  the  circumstances  of  this  case, 
taking;  into  consideration  that  plaintiff  had  paid  his  fare,  and  that, 
owing  to  the  crowded  condition  of  the  car,  he  was  obliged  to  stand  on 
the  front  platform:  that  he  had  gotten  off.  at  the  request  of  the 
driver,  to  help  in  getting  the  car  again  on  the  track,— in  view  of  these 
and  other  facts  of  this  case,  there  was  an  obligation  on  the  part  of 
the  driver  to  see  that  plaintiff  and  others  had  an  opportunity  to  get  on 
the  car  before  he  started  the  horses;  and  if  he  saw,  or  by  the  exer- 
cise of  proper  care  might  have  seen,  the  position  of  the  plaintiff,  and 
thereby  have  avoided  the  injury,  we  think  the  company  was  liabU'." 
In  Texas  &  P.  Ry.  Co.  x'.  Nolan,  11  C.  C.  A.  202.  62  Fed.  5.T_>,  It  was 
said  that  defendant  would  be  liable  if  he  was  guilty  of  negligence 
after  he  might  have  discovered  plaintiff's  peril  by  the  exercise  of  rea- 
sonable care;  but  it  was  held  that  where  a  passenger,  on  leaving  a 
train  in  the  night,  crosses  a  railroad  track,  and  is  struck  by  a  moving 
car.  the  brakeman  on  which  was  unable  to  see  him,  it  Is  error  to 
charge  the  rule  as  to  defendant's  negligence  after  discovering  plain- 
tiff's peril. 

(501) 


191  CARRIERS  OF  PASSENGERS.  (Ch.  13 


CHAPTER  XIII. 

CONTRIBUTORY  NEGLIGENCE  (Cont'nuprl)— VARIATIONS 
FROM  COMMON-LAW  RULE. 

191.  Admiralty  Rule. 

192.  Comparative  Negligence. 

193.  Rule  in  Tennessee. 

194.  Rule  in  Georgia  and  Florida, 

195.  Rule  in  Nebraska. 


§  191.     ADMIRALTY    RULE. 

Courts  of  admiralty  are  not  bound  by  the  common- 
law  rule  governing  contributory  negligence, 
but,  in  cases  of  mutual  fault,  they  may  appor- 
tion damages  bet-w^een  the  parties  according  to 
the  principles  of  equity  and  justice.  This  rule 
applies  to  marine  torts  resulting  in  personal 
injuries,  as  well  as  to  cases  of  prize  and  col- 
lision. 

The  doctrine  of  an  equal  division  of  damages  in  the 
case  of  collision  between  vessels,  where  both  are  guilty 
of  fault,  has  long  prevailed  in  England.  It  was  said 
by  Sir  William  Scott  in  The  Woodrop-Sims,^  decided  in 
1815,  that,  if  a  loss  occurs  through  a  collision  between 
two  vessels,  where  both  parties  are  to  blame,  the  rule 
of  law  is  "that  the  loss  must  be  apportioned  between 
them,  as  having  been  occasioned  by  the  fault  of  both 
of  them."      This  rule  was  approved  by  the  house  of 

§  191.      1  2  Dod.  83,  85. 
(502) 


Ch.    13)  CONTRIBUTORY   NEGLIGENCE.  §    191 

lords  in  1S24."  With  lis  the  riilc  was  first  established 
by  tlie  siii)reme  court  of  tlie  United  States  in  tlic  case 
of  The  Catharine  v.  Dickinson,"'  and  has  been  followed 
in  nnmerons  cases  since. 

The  rule  is  apparently  derived  from  early  medieval 
codes  or  customs,  and  seems  to  have  been  founded 
upon  the  difficulty  of  determinin<i',  in  such  cases,  the 
degree  of  negligence  in  the  one  and  the  other  of  the 
parties.  It  is  said  by  Cleirac*  that  such  rule  of  divi- 
sion is  a  rustic  sort  of  determination,  and  such  as  ar- 
biters and  amicable  compromisers  of  disputes  com- 
monlv  follow,  when  thev  cannot  discover  the  motives 
of  the  parties,  or  when  they  see  faults  on  both  sides. 

As  to  whether  the  rule  applies  to  personal  injuries 
sustained  bv  reason  of  marine  torts,  there  has  been  a 
conflict  of  opinion  in  the  lower  courts  of  the  United 
States.^  But  the  question  was  settled  in  favor  of  the 
application  of  the  admiralty  rule  to  such  cases  by  the 
supreme  court  of  the  United  States  in  1800,  in  The 
Max  Morris.^  In  that  case  the  court  said:  ''Uontribu 
tory  negligence,  in  a  case  like  the  present,  should  not 
wholly  bar  recovery.      There  could  have  been  no  in- 

2  Hay  V.  Le  Neve,  2  Shaw,  App.  :M)o. 

3  17  II.)\v.  ITU. 

4  Us  et  Coutiunes  de  la  :Mer.  p.  08,  quotofl  in  Tho  Max  Monis.  i:'.T 
U.  S.  1,  11  Sup.  Ct.  21). 

5  It  was  held  that  it  did  nor.  and  tliat  lilx-l.-nifs  coiiirilnitnry  ii  •;;li- 
gence  barred  recovery,  iu  Peterson  v.  'I'lif  Cliaiidos,  1  Fed.  (U.",  f.l'.t; 
Holiius  V.  Itailway  Co.,  5  Fed.  523.  538;  The  Mauhasset.  \U  i-d.  VMK 
Contra,  The  Explorer.  20  Fed.  135;  The  Wanderer.  Id.  l-hi;  'l'li.> 
Truro,  31  Fed.  l.jS;  Tlie  Kddystone.  .•i3  Fed.  •.»_•.-.;  Olson  v.  i'lavei.  M 
Fed.  477;    MeCord  v.  The  Tiber.  (>  Kiss.  401).  Feil.  Cas.  NO.  S.71.".. 

6  137  U.  S.  1,  11  Sup.  Ct.  21),  uHirnung  24  Fed.  8W),  aud  2S  i',.,!.  ssi. 


§  102  CARRIERS  OF  PASSENGERS.  (Cll.  13 

jury  to  the  libelant  but  for  the  fault  of  the  vessel;  and 
while,  on  the  one  hand,  the  court  ought  not  to  give  him 
full  compensation  for  his  injury,  where  he  himself  was 
partly  in  fault,  it  ought  not,  on  the  other  hand,  to  be 
restrained  from  saying  that  the  fact  of  his  negligence 
sliould  not  deprive  him  of  all  recovery  of  damages.  As 
stated  by  the  district  judge  in  the  present  case,  the 
more  equal  distribution  of  justice,  the  dictates  of  hu- 
manity, the  safety  of  life  and  limb,  and  the  public  good 
will  be  best  promoted  by  holding  vessels  liable  to  bear 
some  part  of  the  actual  pecuniary  loss  sustained  by  the 
libelant  in  a  case  like  the  present,  where  their  fault  is 
clear,  provided  the  libelant's  fault,  though  evident,  is 
neither  willful  nor  gross  nor  inexcusable,  and  where 
the  other  circumstances  present  a  strong  case  for  re- 
lief. We  think  this  rule  is  applicable  to  all  like  cases 
of  marine  tort  founded  upon  negligence  and  prosecuted 
in  admiralty,  as  in  harmony  with  the  rule  for  the  divi- 
sion of  damages  in  cases  of  collision.  The  mere  fact 
of  the  negligence  of  the  libelant  as  partly  occasioning 
the  injuries  to  him,  when  they  also  occurred  partly 
through  the  negligence  of  the  vessel,  does  not  debar 
him  entirely  from  recovery." 

§  192.  COMPARATIVE  NEGLIGENCE. 

Negligence  of  an  injured  person  does  not  defeat 
recovery,  if  he  was  only  slightly  negligent, 
and  the  other  party  was  grossly  negligent, 
as  compared  with  each  other.  This  doctrine, 
though  generally  repudiated  elsewhere,  pre- 
(504) 


Ch.    13)  CONTRIBUTORY   NEGLIGENCE.  §    1\V2 

vailed  for  many  years  in  Illinois,  but  no-w.  by 
force  of  recent  decisions,  it  is  obsolete  even  in 
that  state. 

The  history  of  the  rise  and  fall  of  the  (lottriue  of 
comparative  negligenee  shows  most  strikinjilv  that  nii- 
soiiml  leiial  principles  cannot  stand  the  test  of  every- 
day use  dnring  a  lono-  period  of  time.  At  an  early 
day,  the  courts  of  Illinois  adopted  the  common-hiw 
principle  that  want  of  ordinary  care  by  plaintiff,  which 
I)roximately  contributes  to  his  injury,  bars  recovery. 
The  doctrine  of  comparative  nejiliiience  oriiiinated 
with  Justice  Breese  in  the  case  of  (xaleiia  «S:  (\  V.  T\. 
Co.  V.  Jacobs,^  decided  in  1858,  and  was  stated  by  hi  in 
as  follows:  "The  degrees  of  negligence  must  be  meas- 
ured and  considered;  and,  wherever  it  shall  a])]>(nir 
that  plaintiff's  negligence  is  comparatively  slight,  and 
that  of  defendant  gross,  he  shall  not  be  deprived  of 
his  action."  He  did  not  profess  to  find  ex])ress  au- 
thority for  this  rule  in  prior  adjudications,  but  he 
thought  he  discovered  a  "vein  of  it  very  perceptible, 
running  through  very  many"  of  what  he  considereil 
the  leading  cases,  English  and  American,  on  the  sub- 
ject of  contributory  negligence.  The  doctriiu-  was  an- 
nounced in  numerous  other  cases,  and  finally  it  became 
the  established  law  in  Illinois.- 

§  192.      1  20  111.  478. 

a  Chicago  &  A.  R.  Co.  v.  Grotzncr.  4r,  111.  7.".:  ('lni;ii:o  v^-  N.  N\'.  K.v. 
Co.  V.  Swoenoy.  .j2  111.  ^23.  In  Toledo  W.  .V  W.  K.v.  Co.  v.  .\I<-(;iiniis, 
71  III.  .■;4r,,  Juilgc  Wiilkcr  said:  "Tlif  s^'ttlcd  iiilc  of  Imw  ii;  iliis 
court  on  the  (iiustion  of  Ufgligeiico  is  that,  tliou^'li  a  iilaiiitilT  may  lie- 
guilty  of  negligence  which  may  have  conliiliuted  to  liic  in.lmy.  lie 
may  still  recover  if  his  negligence  is  slight,  and   that  of   delendant 

(505) 


§  192  CARRIERS  OF  PASSENGERS.  (Ch.  13 

Exactly  what  the  supreme  court  meant  by  the  term 
^'slij>htly  negligent''  was  one  of  the  puzzles  for  the 
legal  profession  in  Illinois  while  the  doctrine  prevail- 
ed. Probably  the  court  at  an  early  day  intended  to 
establish  a  rule  that  Avould  aid  an  injured  party  to 
recover,  in  case  he  had  not  come  (juite  u})  to  the  stand- 
ard of  ordinarv  care,  but  nearlv  so,  where  he  could 
prove  the  other  party  was  grossly  negligent,  in  com- 
parison with  his  slight  failure.^  But  one  of  the  re- 
markable things  about  the  doctrine  of  comparative 
negligence  was  that  the  court  was  never  recpiired  to 
ascertain  the  exact  relation  between  the  doctrine  of 
comparative  negligence  and  the  common-law  doctrine 
of  contributory  negligence  until  the  case  of  Stratton  v. 
Railwav  Co.*  arose  in  1880.  In  that  case  the  trial 
court  charged  tJiat  "it  was  an  essential  element  to  the 
right  of  action  that  plaintiff  showed  he  was  in  the  exer- 
cise of  ordinarv  care."  This  instruction  was  held  er 
roneous,  as  ignoring  the  rule  of  comparative  negli- 
gence.     The  question  came  again  before  the  supreme 

jKioss,  as  compared  with  that  of  plaintiff.  The  rule  is,  uo  doubt. 
a  moditication  of  the  languajje  of  the  earlier  decisions  of  this  court, 
although  not  a  material  moditication  of  the  common-law  principle. 
V^'here  courts  state  the  rule  differently,  they  hold  that,  wliere  the  neji- 
ligence  of  the  plaintiff  is  slij^ht,  and  that  of  the  defendant  gross,  the 
plaintiff's  negligence  did  not  contribute  materially  to  the  Injury." 
The  rule  is  also  asserted  in  the  following,  among  other,  cases:  Chi- 
cago &  A.  R.  Co.  V.  Mock.  72  111.  141;  Illinois  Cent.  R.  Co.  v.  Hammer, 
Id.  347;  Chicago  &  N.  W.  Ry.  Co.  v.  Co.ss,  73  111.  394;  Indianapolis 
&  St.  L.  R.  Co.  V.  Evans,  88  111.  63;  Chicago  &  A.  R.  Co.  v.  Bonitield, 
104  111.  223;    City  of  Mt.  Carmel  v.  Guthridge,  52  111.  App.  032. 

3  City  of  (ialesburg  v.  Benedict,  22  111.  App.  111. 

*  95  111.  25. 
(506) 


Q-l      13)  CONTRIBUTORY   NEGLIGENCE.  §    1^2 

court  in  Cliicaj?o,  B.  &  Q.  "R.  Co.  v.  Johnson,'  w'.umi  it 
reversed  itself.      In  tliat  case  the  trial  court  uavc  the 
following  iustruotion:    "If  the  jury  believe  from  the 
evidence  that  plaintiff  did  not  exercise  ordinary  care, 
yet  that  his  negligence  was  slight,  and  that  the  negli- 
gence of  defendant  was  gross,  in  comparison  with  each 
other,  then  the  plaintiff  nuist  recover."      This  was  em- 
phatically held  to  be  erroneous,  because  a  person  guilty 
of  want  of  ordinary  care  could  not  be  guilty  of  merely 
^'slioht  negligence."      This  princi])le  was  reaffirmeil  in 
Calumet  Iron  &  Steel  Co.  v.  Martin."      In  that  case 
defendant's  counsel  contended  that  whenever  plaintifl 
was  guilty  of  slight  negligence,  he  must  show  that  de- 
fendant was  guilty  of  gross  negligence  before  he  could 
recover.      But  the  supreme  court  laid  down  this  prin- 
ciple:  "If  plaintiff  is  in  the  use  of  ordinary  care,  and 
defendant  not  in  the  Use  of  ordinary  care,  and  injury 
happens  in  consequence,  plaintiff  can  recover  without 
proof  that  defendant's  negligence  was  gross  in  com- 
parison to  the  plaintiff's  negligence,  which  was  slight, 
even   if   plaintiff   was    guilty   of   slight   negligence." 
These  two  decisions  completely  stripped  the  principle 
of  comparative  negligence  of  its  vitality,  though  the 
force  and  effect  of  the  decisions  were  not  at  once  appre- 
hended by  the  supreme  court  itself."      At  length,  m 
the  case  of  City  of  Galesburg  v.  Benedict,^  dechled  in 
1880  by  one  of  the  appellate  courts  of  Illinois,  Mr. 

5  KCJ  HI.  .j12  (1S.S2). 

6  lin  111.  358,  3  N.  K.  456  (18S5). 

7  ,n   Willnnl  v.  Sw.-.ns.-u.   V2V.  111.  ::S1.  IS  N.  10.  .548.  th..  -l.-trino  of 
0<;n>i:nativ  urj;lii;cuce  wa.s  ivitcrutcHl  in  a  in^.dili.Ml  f.-nn. 

«  22  111.  App.  111. 

(307) 


§  192  CARRIERS  OF  PASSENGERS.  (Cll.  IS 

Justice  Lacey,  in  a  remarkably  clear  and  hicid  opinion, 
reviewing  the  entire  history  of  the  law  of  comparative 
negligence,  as  expounded  in  that  state,  pointed  ont  the 
fact  that  it  was  virtually  abolished  by  these  two  deci- 
sions. "In  all  cases  plaintiff  is  bound  to  show  ordinary 
care  on  his  part,  and  lack  of  ordinary  care  on  defend- 
ant's part.  This  entitles  him  to  recover  if  the  injurj^ 
was  caused  by  such  negligence  of  the  defendant. 
Now,  admitting  that  plaintiff,  while  in  the  exercise  of 
ordinary  care,  was  slightly  negligent,  which  he  may  be 
under  the  rule  in  the  Johnson  Case,  supra,  what  benefit 
would  this  comparative  negligence  doctrine  be  to  him, 
he  having  a  complete  right  to  recover  without  it? 
Why  should  he  desire  to  prove,  in  excuse  of  his  slight 
negligence,  that  defendant  was  grossly  negligent  in 
comparison,  especially  as  the  defendant  cannot  take 
advantage  of  the  fact  that  he  does  not  prove  it?"  Fi- 
nally, the  supreme  court  itself  announced  the  abolition 
of  the  doctrine  in  unmistakable  terms.  In  Lake  Shore 
&  M.  S.  Ey.  Co.  V.  Hessions,**  it  said:  "We  have  repeat- 
edly held,  in  effect,  in  the  later  decisions,  beginning 
with  (^alumet  Iron  &  Steel  Co.  v.  Martin,'^  that  the 
doctrine  of  comparative  negligence,  as  announced  in 
the  earlier  cases,  was  no  longer  the  law  of  this  state, 
and  it  is  no  longer  to  be  considered  as  a  correct  rule 
of  law  applicable  to  cases  of  this  character.  The 
doctrine  as  announced  in  the  later  decisions,  as  applied 
to  this  class  of  cases,  requires,  as  a  condition  to  recov- 

9  150  111.  54G.  550.  37  N.  E.  005.  citing  I'ullinan  Palace-Car  Co.  v. 
Laack,  143  111.  242,  32  N.  E.  2S5;  Village  of  :\laustield  v.  iloore,  121 
111.  133,  16  X.  E.  246. 

10  115  111.  358,  3  N.  E.  450. 


Ch.    13)  CONTRIBUTORY   NEGLIGENCE.  §    193 

ery  bv  the  plaiutiti',  that  the  person  injured  be  fouuil 
to  be  iu  the  exercise  of  ordinary  eare  for  his  own  safety, 
and  that  the  injnry  resnlted  from  the  negligence  of  the 
defendant."  In  numerous  other  cases,  the  doctrine 
of  comparative  negligence  is  declared  to  be  obsolete  in 
Illinois.''  The  doctrine  never  obtained  much  of  a  foot- 
hold elsewhere,  though  traces  of  it  are  to  be  found  in 
some  decisions.'^ 

S   193.     RULE   IN   TENNESSEE. 

The  doctrine  of  comparative  negligence  has  been 
emphatically  repudiated  in  Tennessee.'  Nevertheless, 
a  modification  of  the  common-law  rule  as  to  contribu- 

11  City  of  Lanark  v.  Dougherty,  158  111.  163.  38  N.  E.  892:  Wenoiia 
Coal  Co.  V.  Holmqnist.  152  111.  .".Sl.  :^S  X.  E.  946;  North  Chicago  St. 
R.  Co.  V.  Eldridge.  151  111.  542.  548.  ...^  X.  E.  24f.;  Cli'Vi'lniul,  C,  C. 
&  St.  L.  K.  Co.  V.  -Maxwe..,  .59  111.  Apj).  f.T:!;  Illinois  Cent.  K.  Co.  v. 
Ashliue,  56  111.  App.  475;    Chicago  c^:  E.  I.  U.  Co.  v.  .Johu.son.  01  111. 

App.  465. 

12  The  doctrine  of  comparative  negligence,  recognized  iu  the  coiu'ts 
of  Illinois,  and.  in  a  modified  form,  of  Georgia  and  Tennessee,  is  nut 
the  law  of  this  state.  McDonald  v.  International  iV:  C.  X.  Ry.  Co., 
86  Tex.  1,  22  S.  W.  li.sn;  (iulf.  C.  &  S.  F.  Ky.  Co.  v.  Ruford.  2  Tex. 
,Civ.  App.  115,  21  S.  W.  272;  Missouri.  K.  v*c  T.  Ky.  Co.  v.  Rodgers 
(Tex.  Sup.)  36  S.  W.  243,  reversing  35  S.  W.  412;  Atchi.son.  T.  A:  S. 
F.  R.  Co.  V.  O'Melia.  1  Kan.  App.  bi4,  41  Pac.  4;{7:  Atchison.  T.  iV  S. 
F.  R.  Co.  V.  Henry  (Kan.  Sup.)  45  Pac.  576.  But  in  Kentucky  Cent. 
Ry.  Co.  V.  Smith.  9;{  Ky.  449,  20  S.  W.  ;!92.  it  was  held  that  where 
a  railroad  company  is  gi'ilty  of  the  highest  degree  of  neglect,  resulting 
in  Ihc  injury  of  a  person  crossing  its  tracks  at  a  puhlic  crossing  in  a 
city,  the  fact  that  the  person  injired  was  guilty  of  ordinary  uegligtMice 
c  n-titutes  no  defense  to  the  c.,mpany. 

S  193.  1  Railway  Co.  v.  Hull,  ss  Tenn.  .•'.:•.,  12  S.  W.  119;  E.ist 
Tennes.si-f.  \'.  &  (}.  R.  Co.  v.  (JurU^y.  12  Lea  (Teuu.)  55;  East  Teu- 
"oessee,  V.  iV-  C.  R.  Co.  v.  Fain,  Id.  35. 

{50U) 


§  193  CARRIERS  OF  PASSENGERS.  (Ch.  13 

torv  nealiiicnce  obtains.  The  Tennessee  rule  is  tlms 
stated  by  the  supreme  court  of  that  state:  -  "Where 
both  parties  are  guilty  of  some  negligence,  if  the  negli- 
gence of  the  plaintiff  is  the  proximate  and  efficient 
cause  of  the  accident,  he  cannot  recover,  and  if  the 
defendant's  negligence  is  the  proximate  and  efficient 
cause  of  the  injury,  it  is  liable;  but  in  such  case  the 
negligence  of  the  plaintiff  should  be  taken  into  consid- 
eration bv  the  iurv  in  mitigation  of  damages."  In  a 
still  later  case  ='  the  rule  is  thus  stated:  "Plaintiff's 
contributory  negligence  or  wrongful  conduct  may  be 
considered  in  mitigation  of  damages,  however  wanton, 
willful,  and  reckless  the  act  of  the  defendant  which 
produced  the  injury  may  have  been."  The  principal 
difference  between  the  Tennessee  and  the  common-law 
rule  is  in  allowing  damages  to  be  mitigated  by  the 
conduct  of  the  injured  party.*      To  the  extent  that  it 

2  East  Tennessee,  V.  &  G.  K.  Co.  v.  Conner,  15  Lea  (Tenn.)  254, . 
citing  Wliirley  v.  Whiten: an,  1  Head  (Tenn.)  610.  In  the  case  first 
cited  the  facts  were  these:  A  station  was  announced,  the  train  was 
stopped,  and  the  conductor  told  a  female  passenger  to  get  off.  She 
hurried  to  the  door,  but  the  train  had  started  Avhen  she  got  on  the 
car  i)latform.  In  the  darkness  and  confusion,  seeing  that  the  train 
was  moving  off,  she  jumped  and  was  injured.  As  a  matter  of  fact, 
the-  train  had  not  arrived  at  the  station.  Held,  that  she  had  a  right 
to  assume  that  the  train  had  arrived  at  the  station,  and  to  rely  on  the 
conductor's  direction,  and  that  she  was  entitled  to  recover  against  the 
company,  but  tliat  her  conduct  in  leaping  from  the  moving  train 
should  be  considered  by  the  jury  in  mitigation  of  damages. 

3  Railway  Co.  v.  Wallace,  90  Tenn.  53,  15  8.  W.  021. 

4  Louisville,  N.  cV-  G.  S.  It.  Co.  v.  Fleming,  14  Lea  (Tenn.)  128.  In 
this  case  it  was  held  that,  in  an  action  for  wrongful  ejection  of  a  pas- 
senger from  a  train,  plaintiff's  negligence  in  failing  to  make  a  th;)r- 
ough  search  for  his  ticket  could  be  considered  by  the  jury  in  mitiga- 
tion of  damages. 

(510) 


Ch.    lo)  CONTRIBUTORY   NEGLIGENCE.  §    194 

permits  niitijiatioii  of  daninjies  for  Avillful  wron^,  Ww- 
Tennessee  rule  is  more  onerous  than  the  (•oninion  hiw, 
for  at  common  law  contributory  neuliuence  is  no  de- 
fense  in  an  action  for  a  willful  wronu. 

§  194.     RULE   IN  GEORGIA  AND  FLORIDA. 

By  statute  ^  adopted  in  (Jeoriiia  originally  in  IS,")'),  ii 
is  enacted:  "No  person  shall  recover  (laiuaucs  from  a 
railroad  company  for  injury  to  himself  or  his  ])roi»erty, 
Avhere  the  same  is  done  by  his  consent,  or  is  caused  by 
his  own  negligence.  If  the  com])lainant  and  the 
agents  of  the  company  are  both  at  fault,  the  foiuier 
may  recover,  but  the  damages  shall  be  diminished 
by  the  jury  in  proportion  to  the  amount  of  default 
attributable  to  him."  Another  statute  ■  declares:  "If 
the  plaintiff,  by  ordinary  care,  could  have  avoided  the 
consequences  to  himself  caused  by  defendant's  negli- 
gence, he  is  not  entitled  to  recover.  But  in  other  cases 
the  defendant  is  not  relieved,  although  the  plaintiff 
mav  in  some  wav  have  contributed  to  the  injury  re- 
ceived."  Still  another  statute"'  raises  a  presumption 
of  negligence  against  a  railroad  coni])any  from  the  fact 
of  the  accident.  In  Vickers  v.  Atlanta  .V:  \V.  P.  \l.  Co.,' 
Justice  Bleckley  said,  in  reference  to  these  statutes: 

§  104.  1  Code  Ga.  1882,  §  :W:J4.  A  similar  statute  has  receutly 
bieu  ('na<  ted  iu  Florida.     Rev.  St.  Fla.  18!»2,  §  2;i45, 

1!  (  ode  (ia.  1.SS2,  S  12;»72. 

8  Cede  Ga.  1882,  §  ms^. 

■4  (187!t)  ()4  Ga.  30(i.  In  iliis  case  it  was  held  that  it  was  fur  tlic 
jury  to  determine  whether  a  boy  10  years  old.  who  is  injurcil  in  an 
attempt  to  board  a  moving  engine  on  invitation  of  tli-  cniiim cr,  is 
eutitled  to  recover  from  the  comijany. 

(oil) 


§  194  CARRIERS  OF  PASSENGERS.  (,Ch.  13 

"We  discover  that  a  presumption  of  uej-ligence  is  rais- 
ed against  the  company  from  the  mere  fact  of  inflicting 
the  injury,  and  that,  on  combining  that  presumption 
with  the  whole  run  of  tlie  evidence,  one  of  four  results 
may  follow:  First,  if  the  presumption  is  wholly  over- 
come, the  verdict  should  be  for  the  company;  secondly, 
whether  it  is  overcome  or  not,  if  the  plaintiff  either 
caused  the  injury  by  his  own  negligence,  or  could,  by 
ordinary  care,  have  avoided  it,  the  verdict  should  be 
for  the  company;  thirdly,  if  the  plaintiff  was  faultless, 
neither  contributing  to  the  injury,  nor  omitting  ordi- 
nary care  to  avoid  it,  the  verdict  should  be  against  the 
company  for  full  damages;  and,  fourthly,  if  the  plain- 
tiff contributed  to  the  injury,  but  did  not  himself  cause 
it,  and  could  not  have  avoided  it  by  ordinary  care,  the 
vprdict  should  be  against  the  company,  not  for  full 
damages,  but  for  the  damages  diminished  in  proportion 
to  the  default  attributable  to  the  plaintiff."  In  a 
later  case  '  it  is  said :  "It  seems  to  be  the  clear  meaning 

5  Aniericus,  P.  &  L.  R.  Co.  v.  Luckie,  87  Ga.  0.  13  S.  E.  lOo.  In 
Macon  &  W.  R.  Co.  v.  Johnson  (1SG8)  38  Ga.  400.  it  is  said:  "If  a 
pas.>-enger  on  a  railroad  be  injured  by  a  collision  of  trains,  and  the  evi- 
dence shows  that,  though  the  company  or  its  agents  were  guilty  of 
negligence,  yet  the  injured  party  could,  by  the  exercise  of  ordinary 
diligence,  have  avoided  the  consequences  to  himself  of  that  negli- 
gence, he  is  not  entitled  to  recover  any  damages,  from  the  company. 
If,  in  such  case,  it  appears  that  both  parties  were  guilty  of  negli- 
gence, and  it  dot  s  not  further  appear  from  the  evidence  that  deceased 
could,  at  the  time  of  the  injury,  have  avoided  the  consequences  to  him- 
self of  the  negligence  of  the  railroad  company  or  its  agents,  he  is  eu- 
ftled  to  recover;  but  it  is  the  duty  of  the  jury  to  lessen  the  amount 
of  their  verdict  in  proportion  to  the  negligence  and  want  of  ordinary 
care  of  the  passenger."  In  Western  &  A.  R.  R.  v.  Wilson,  71  Ga.  22, 
it  was  held  that,  where  a  boy  attempts  to  board  a  moving  train  on  the 

(512) 


Ch.    13)  CONTRIBUTORY  NEGLIGENCE.  §    195 

of  our  law  that  the  plaintiff  can  never  recover  in  an 
action  for  personal  injuries,  no  matter  what  the  no<ili- 
gence  of  the  defendant  may  be,  short  of  actual  wanton- 
ness, when  the  proof  shows  he  couhl,  by  ordinary  care, 
after  the  negligence  of  defendant  began,  or  was  exist- 
ing, have  avoided  the  consequences  to  himself  of  that 
negligence.  Of  course,  there  can  be  no  recovery  when 
the  defendant  is  entirely  free  from  negligence,  and  uses 
all  proper  care  to  prevent  injury.  The  law  of  contrib- 
utory negligence  is  applicable  only  where  both  parties 
are  at  fault,  and  when,  also,  the  plaintiff  could  not,  by 
ordinary  care,  have  avoided  the  injury  which  defend- 
ant's negligence  produced." 

§  195.     RULE  IN  NEBRASKA. 

A  statute  in  Nebraska  renders  railroad  companies 
insurers  of  the  safety  of  their  passengers,  except  when 
the  injury  arises  from  the  criminal  carelessness  of  the 
passenger,  or  a  violation  of  the  company's  rules  of 
which  the  passenger  had  notice.^  This  statute,  by  its 
terms,  is  restricted  to  railroad  companies  as  carriers 
of  passengers.  In  all  other  cases,  the  common-law 
rule  as  to  contributory  negligence  prevails.  The 
term  "criminal  negligence,"  as  used  in  this  statute, 
is  "defined  to  be  gross  negligence.  It  is  such  neg- 
ligence as  would  amount  to  a  tiagrant  and  reckless 
disregard  of  the  passenger's  own  safety,  and  aiiioiiul 

invitation  of  one  of  the  train  tiands,  botli  parties  are  at  fault;    and  a 
verdict  of  !?4,5(iO  for  the  loss  of  a  leg  by  reason  of  tlie  atleinpl  will  rnvt 
be  set  aside  under  the  statute. 
§  195.     1  Conii).  St.  Neb.  ISiJ;!,  c.  Tl,  an.  1,  §  3.     See,  also,  ante,  §  27. 

v.  1  FET.CAK.PAJj. — 33  (513) 


§  195  CARRIERS  OF  PASSENGERS.  (Ch.  IS 

to  a  willful  indifference  to  the  injury  liable  to  fol- 
low." -  To  jump  from  the  car  platform,  without  us- 
ing the  steps,  as  the  train  is  pulling  out  of  the  sta- 
tion,^ or  to  leap  from  a  rapidly  moving  train,  with- 
out any  direction  from  the  trainmen,  and  not  under 
the  fear  of  impending  danger,*  is  criminal  negligence,. 
Avithin  the  meaning  of  this  statute.  So  a  passen- 
ger who  attempts  to  alight  from  a  train  -standing  on 
a  high  bridge,  after  he  has  been  warned  by  the  con- 
ductor not  to  do  so,  and  been  informed  of  the  situa- 
tion of  the  train,  is  guilty  of  criminal  negligence,  as 
matter  of  law.^  But  it  is  not  criminal  negligence,  as 
matter  of  law,  for  a  passenger  to  attempt  to  leave  a 
train  moving  about  as  fast  as  a  person  can  walk.® 

2  Omaha  c^-  R.  V.  R.  Co.  v.  ChoUette,  33  Neb.  143,  49  N.  W.  1114; 
Chicago,  B.  ^^-  Q.  R.  Co.  v.  Hague,  48  Neb.  97-,  66  N.  W.  1000;  Chicago, 
B.  &  Q.  R.  Co.  V.  Hyatt  (Neb.)  67  N.  W.  8. 

3  Chicago,  B.  &  Q.  R.  Co.  v.  Landauer,  36  Neb.  642,  54  N.  W.  976; 
Id.,  39  Neb.  803,  58  N.  W.  434. 

*  Woolsey  \.  Raih-oad  Co.,  39  Neb.  798,  58  N.  W.  444. 

B  Chicago,  B.  &  Q.  R.  Co.  v.  Hague,  48  Neb.  97,  66  N.  W.  1000. 

6  Chicago,  B.  &  Q.  R.  Co.  v.  Hyatt  (Neb.)  67  N.  W.  8. 

(514) 


Ch.    1-i)  KEGLIGENCE    OF    THIRD    PERSONS.  §    19G 

CHAPTER  XIV. 

NEGLIGENCE  OF  THIRD  PERSONS— IMPUTED  NEGLIGENCE. 

§  mo.  Concurrent  Negligence  of  Third  Persons. 

197.  Imputed  Negligence. 

108.  Same— Of  Carrier  or  Driver  to  Passenger. 

199.  Same— Of  Parent  to  Child. 

200.  Same— Of  Husband  to  Wife. 

201.  Same— Of  Wife  to  Husband. 

§  196.     CONCURRENT  NEGLIGENCE  OF  THIRD  PER- 
SONS. 

A  carrier  is  not  relieved  from  liability  for  the  con- 
sequences of  its  own  negligence  by  the  fact 
that  the  negligence  of  a  third  person  also  con- 
curred in  producing  the  injury  to  the  passen- 
ger.' 

The  principle  heretofore  stated,  that  a  carrier  is 
not  responsible  for  the  wrongful  acts  of  third  persons,^ 
has  no  application  unless  it  itself  is  free  from  negli- 
gence contributing  to  the  injury.^  Hence,  in  cases 
of  collision  between  trains  of  different  companies,  it 
is  no  defense  to  the  carrier  to  say  that  the  other  com- 
pany was  negligent,  if  its  own  negligence  proximately 
contributed  to  the  injury.*      So,  where  the  life  of  a 

§  rJG.     1  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Lucas,  119  lud.  591,  21 
N.  E.  968. 

2  See  ante,  §  96. 

3  Clark  V.  Railroad  Co.,  127  Mo.  197,  29  S.  W.  lOl.-.. 

4  Union  R.  &.  T.  Co.  v.  Sliacklct,  119  111.  2:VJ.  10  N.  K.  S90;    Clark  v. 
Railroad  Co.,  127  Mo.  197,  29  S.  W.  1013;    Eaton  v.  Railroad  Co.,  11 

(515) 


§  196  CARRIERS  OF  PASSENGERS.  (Ch.  14 

passenger  on  a  steamer  is  lost  by  tlie  defective  con- 
struction of  the  liurricane  deck,  wliicli  gives  way,  and 
precipitates  him  into  the  water,  the  fact  that  the  im- 
proper conduct  of  a  crowd  in  haste  to  board  the  boat 
contributed  to  tlie  accident  does  not  relieve  the  steam- 
boat owner  from  liability.^ 

Allen,  500.  A  street-railroad  company  is  liable  for  an  injury  to  a 
passenger  in  its  car  sustained  in  a  collision  with  the  car  of  another 
company,  at  an  intersection  of  the  tracks  of  the  two  companies,  if 
the  negligence  of  its  own  servants  contributed  to  the  injury,  though 
the  servants  of  the  other  were  also  negligent.  Barrett  v.  Railroad 
Co..  45  N.  Y.  628,  affirming  1  Sweeny,  5GS.  Where  a  passenger  on  a 
street  car  is  injured  in  a  collision  between  the  car  and  a  fire  truck,  the 
fact  that  the  collision  was  caused  by  the  joint  negligence  of  the  street- 
car driver  and  those  in  charge  of  the  truck  does  not  relieve  the  street- 
car company  from  liability  for  the  injury.  Heucke  v.  Railway  Co., 
69  Wis.  401,  34  N.  AV.  248.  A  ship  owner  is  liable  to  a  passenger  on 
his  vessel  for  injuries  sustained  in  a  collision  caused  by  the  concur- 
ring negligence  of  the  colliding  ships.  Jung  v.  Starin,  12  Misc.  Rep. 
3G2.  33  N.  Y.  Supp.  050.     See,  also,  ante,  §§  88-91. 

5  Com.  V.  Coburu,  132  Mass.  .555.  The  gate  on  a  ferryboat  was  out 
of  order,  the  lock  at  the  top  being  removed,  and  the  catch  at  tlu' 
bottom  being  out  of  working  order.  Some  unauthorized  person  opened 
the  gate  as  the  boat  approached  the  landing,  and  a  passenger  was 
pressed  against  it  by  a  sudden  movement  of  the  crowd.  Held,  that 
it  was  defendant's  duty  to  see  that  the  gate  was  properly  locked  and 
guarded,  and  that  therefore  the  act  of  a  stranger  in  throwing  open 
the  gate  did  not  relieve  it  from  liability.  Peverly  v.  City  of  Boston, 
13G  Mass.  36G.  Where  a  carrier  of  passengers  by  a  steamer  is  negli- 
gent in  failing  to  keep  a  boat  properly  suspended  over  a  part  of  the 
deck  where  it  is  proper  for  passengers  to  be,  and  a  passenger  is  in- 
jured by  the  fall  of  the  boat,  the  fact  that  other  passengers  carelessly 
got  into  the  boat,  and  that  their  negligence  contributed  to  bring  about 
the  accident,  is  no  defense.  Simmons  v.  Steamboat  Co.,  97  Mass. 
361.  Where  a  passenger  about  to  disembark  from  a  river  steamer 
is  injured  because  the  stage  plank,  owing  to  the  current  of  the  river. 
comes  in  contact  with  a  temporary  stanchion  defectively  constructed 
hj  the  carrier,  the  fact  that  the  stage  plank  may  have  been  put  out 
(51G) 


Ch.    14)  NEGLIGENCE    OF    THIRD    PEUS'»NS.  §    1 OG 

But  a  railroad  coinpany  is  not  liable  for  an  iniurv 
to  a  passt'iiiicr  caused  by  the  collision  ol"  its  naiii  witli 
an  en<iine  of  another  railroad  at  a  p*ade  crossing  of 
the  two  roads,  where  the  collision  Avas  caused  solely 
by  the  neolij^ence  of  the  employees  of  the  other  rail- 
road.® 

On  the  principle  that  there  can  be  no  contribution 
between  joint  wrongdoers,  a  carrier  against  whom  a 
judgment  has  been  rendered  for  injuries  to  a  passtm 
o-er  cannot  recover  its  amount,  either  in  whole  or  in 
part,  from  a  third  person,  whose  negligence  concurred 
with  that  of  the  carrier  in  producing  the  accident/ 

by  passengers,  instead  of  the  crew,  does  not  relieve  defendant  from 
liability.     Louisville  lS:  J.  Ferry  Ck).  v.  Nolan,  135  Ind.  60,  3-i  N.  E.  710. 

6  Bunting  v.  Kailroad  Co.,  118  Pa.  St.  204,  12  Atl.  448. 

7  Talniadge  v.  Railroad  Co.,  11  Ohio,  197.     This  rule,  however,  is 
not  applicable  in  exceptional  cases.     A  passenger,  on  leaving  the  sta- 
tion of  a  railroad  company,  was  injured  by  stumbling  over  some  mail 
bags  negligently  left  there  by  a  mail  contractor  engaged  in  trans- 
ferring them  from  the  station  to  the  post  oftice.     The  railroad  com- 
pany was  held  liable  to  the  pass,enger  because  it  had  failed  to  keep 
the  sidewalk  reasonably  safe.     Held,  that  the  company  could  recover 
against  the  contractor;    that  such  action  was  grounded  on  the  fact 
that  the  mail  contractor,  by  his  negligence,  had  exposed  the  company 
to  liability;    and  that  the  company's  neglect  to  keep  the  sidewalk  safe 
did  not  make  it  a  joint  wrongdoer  with  the  contractor  in  any  such 
sense  as  to  prevent  it  from  recovering.     Old  Colony  R.  Co.  v.  Slavi'ns, 
148  Mass.  3G;},  19  N.  E.  372.     In  an  action  against  two  railroad  com- 
panies for  personal  injuries,  it  is  within  the  power  of  the  court  to 
render  judgment  over  against  the  company  whose  negligence  caused 
the  injury.     Gulf,  C.  &  H.  F.  Ry.  Co.  v.  Hathaway,  75  Tex.  557,  Vi 
S.  W.  999.     At  common  law,  a  judgment  for  damages  against  joint 
wrongdoers  could  not  be  severed;    but  a  statute  in  Kentuclcy,  pas.^.'.! 
in  1S30.  authorizing  the  jury  to  assess  s^-vcral  judgments  against  joint 
defeudauts  in  such  cases,  is  still  in  force,  and  under  It  the  Jury  may 

(517) 


§  197  CARRIERS  OF  PASSENGERS.  (Ch.  14 

§  197.     IMPUTED  NEGLIGENCE. 

In  considering  the  question  whether  a  passenger 
injured  by  the  concurring  negligence  of  the  carrier 
and  a  third  person  may  recover  against  the  third  per- 
son as  well  as  the  carrier,  it  becomes  necessary  to 
notice  the  doctrine  of  imputed  negligence.  In  cer- 
tain relations  the  negligence  of  a  third  person  will  be 
imputed  to  plaintiff.  Thus,  where  tlie  negligence  of 
plaintiff's  servant,  while  prosecuting  plaintiff's  busi- 
ness, concurs  with  that  of  defendant  in  producing  an 
injury  to  plaintiff,  the  negligence  of  the  servant  will 
be  imputed  to  plaintiff,  and  will  bar  a  recovery  to  the 
same  extent  as  if  plaintiff  had  been  guilty  of  con- 
tributory negligence.^  Sound  legal  principle  would 
seem  to  require  that  this  doctrine  be  strictly  limited 
to  cases  where  the  person  whose  negligence  is  sought 
to  be  imputed  to  plaintiff  stands  in  such  relation  to 
him  as  will  make  him  liable  to  strangers  for  the  negli- 
gence of  such  person,^  Efforts  have,  however,  been 
made  by  courts  to  press  the  doctrine  beyond  these  lim- 
its, but  the  tendency  of  recent  decisions  is  decidedly 
adverse  to  this  course.  In  the  language  of  the  su- 
preme cour-t  of  Georgia  in  a  recent  case:  ^  "It  would 
seem  that  the  efforts  on  the  part  of  the  courts  of  an 
earlier  day  to  formulate  rules  which  would  extend  the 

assess  heavier  damages  against  one  defendant  tlian  against  ttie  other. 
Central  Passenger  Ry.  Co.  v.  Kuhn,  86  Ky.  .578,  6  S.  W.  441. 

§  197.     1  La  Riviere  v.  Pemberton,  46  Minn.  5,  7,  48  N.  W.  406. 

«  2  Jagg.  Torts,  p.  980. 

3  Atlanta  &  C.  Air-Line  Ry.  Co.  v.  Gravitt,  93  Ga.  309,  389,  20  S. 
B.  550. 

(518) 


Ch.    14)  NEGLIGENCE    OF   THIRD    PERSONS.  §    198 

doctrine  of  imputable  negligence  so  as  to  iuehule  per- 
sons other  than  those  who  actually  sustained  towards 
each  other  the  relation  of  master  and  servant,  or  j)rin- 
cipal  and  agent,  or  who  were  jointly  engaged  in  tht' 
prosecution  of  a  common  enterprise,  have  proved  to 
be  entirely  unsuccessful  legal  ventures.  Such  rules 
have  already  met  tlie  fate  which  must  inevitably  soon- 
er or  later  have  befallen  them,  for  they  stand  upon  no 
foundation  of  logic,  wisdom,  or  justice." 

§  198.     SAME— OF  CARRIER  OR  DRIVER  TO  PASSEN- 

GER. 

Negligence  of  a  carrier  or  of  the  driver  of  a  pub- 
lic conveyance  cannot  be  imputed  to  a  passen- 
ger riding  in  the  vehicle,  so  as  to  prevent  him 
from  recovering  against  a  third  person  whose 
negligence  concurred  with  that  of  the  driver 
or  carrier  in  producing  injury  to  the  passenger. 
By  the  weight  of  authority,  the  same  principle 
applies  to  persons  riding  in  a  private  vehicle 
at  the  invitation  of  the  owner  or  driver. 

In  Thorogood  v.  Bryan, ^  decided  in  1S4U,  it  was  held 
that  a  passenger,  by  taking  his  seat  in  a  public  convey- 
ance, becomes  so  far  identified  with  the  driver  that  the 
negligence  of  the  driver  is  imputable  to  Jiim,  and  pre- 
vents recovery  against  a  third  person  whose  negligence 
concurred  witli  that  of  the  driver  in  producing  an  in- 
jury to  the  passenger.      The  principle  aiiiioiiiiccd   in 

§  198.     1  8  C.  B.  1 15. 

(519) 


§    198  CARRIERS   OF  PASSENGERS.  (Ch.    14 

this  case  stood  as  tlie  law  of  England  for  40  years, - 
It  was  finally  overruled  by  the  house  of  lords  in  1888, 
in  the  case  of  The  Bernina,^  where  it  was  held  that  a 
passenger  on  a  vessel  is  not  so  identified  with  the  mas- 
ter and  crew  as  to  prevent  the  maintenance  of  an  ac- 
tion against  another  vessel  for  his  death,  caused  by  a 
collision  between  the  two  vessels  resulting  from  the 
combined  negligence  of  both.  In  that  case  Lord  Wat- 
sou  said:  "I  am  of  opinion  that  there  is  no  relation 
constituted  between  the  driver  of  an  omnibus  and  its 
ordinary  passengers  which  can  justify  the  inference 
that  they  are  identified  to  any  extent  whatever  with 
his  negligence.  He  is  the  servant  of  the  owner,  not 
their  servant.  He  does  not  look  to  them  for  orders,  and 
they  have  no  right  to  interfere  with  his  conduct  of  the 
vehicle,  except,  perhaps,  the  right  of  remonstrance 
when  he  is  doing,  or  threatens  to  do,  something  that  is 
wrong  or  inconsistent  with  their  safety.  Practically, 
they  have  no  greater  measure  of  control  over  his  ac- 
tions than  the  passenger  in  a  railway  train  has  over  the 
conduct  of  the  engine  driver." 

In  the  United  States  the  current  of  authority  has 
always  been  adverse  to  Thorogood  v.  Bryan.  In  the 
language  of  the  supreme  court  of  Louisiana:  *  "It  is  so 
unjust  to  attribute  to  a  i^assenger  the  negligence  of  the 
agents  of  the  company  in  whose  carriage  he  is  riding, 
so  untrue  in  point  of  fact  that  any  identity  exists  be- 

2  The  case  was  followed  in  Armstrong  v.  Railway  Co.  (1875)  L.  R. 
10  Exch.  47. 
s  13  App.  Cas.  1. 

4  Holzab  V.  Railroad  Co.,  3S  La.  Ann.  185. 
(520) 


Ch.    14)  NEGLIGENCE    OF    THIRD    PERSONS.  §    198 

tween  tbem,  aiul  so  true  that  it  can  exist  only  by  a  sort 
of  legal  fiction,  that  it  is  not  surprising  that  tlici-c  has 
been  a  judicial  revolt  against  the  doctrine."  The  prin- 
ciple of  Thorogood  t.  Bryan  was  repudiated  at  an  early 
day  by  the  court  of  appeals  of  New  York,^  and  now  it 
is  held  without  dissent  by  all  courts  in  the  United 
States  that  the  negligence  of  a  carrier  cannot  be  im- 
puted to  a  passenger,  so  as  to  bar  a  recovery  by  the 
passenger  against  a  third  person  whose  negligence  con- 
curred with  that  of  the  carrier  in  causing  an  injury 
to  the  passenger.®      "The  public  interests  will  be  best 

5  Chapman  y.  Railroad  Co..  19  N.  Y.  341;  Golegrove  v.  Railroad 
Co.,  20  N.  Y.  492,  affirming  6  Duer,  382;  Webster  y.  Railroad  Co.,  3S 
N.  Y.  260. 

c  Tompkins  y.  Railroad  Co.,  66  Cal.  163,  4  Pac.  1165;  West  Chicago 
St.  R.  Co.  y.  Piper  (111.)  46  N.  E.  186,  affirming  64  111.  App.  605;  Pitts- 
burgh, C.  &  St.  L.  R.  Co.  y.  Spencer,  98  Ind.  186;  McDonald  y.  Railroad 
Co.,  47  La.  Ann.  1440,  17  South.  873;  Patterson  y. Railway  Co.,  54  Mich. 
91,  19  N.  W.  761;  Malmsten  y.  Railroad  Co.,  49  Mich.  94,  13  X.  W. 
373;  Cuddy  y.  Horn,  46  Mich.  596,  10  N.  ^Y.  32;  Flaherty  y.  Raihyay 
Co.,  39  Minn.  328,  40  N.  W.  160;  Ti-ansfer  Co.  y.  Kelly,  36  Ohio  St. 
86;  Markham  y.  Houston  Direct  Nay.  Co.,  73  Tex.  247,  11  S.  W.  131; 
New  York,  P.  &  N.  R.  Co.  y.  Cooper,  85  Va.  939,  9  S.  E.  321.  The 
doctrine  of  Thorogood  y.  Bryan.  8  C.  B.  115,  which  imputes  to  a 
pa.ssonger  the  negligence  of  a  driver  oyer  whom  the  passenger  exer- 
cises no  influence  or  coutrol,  so  far  as  it  has  obtained  a  footing  in  this 
state,  is  oyerruled.  State  y.  Railroad  Co.,  SO  Me.  430,  15  Atl.  36. 
oyerruling  Dickey  y.  Telegraph  Co.,  43  Me.  492.  The  coutributoiy 
negligence  of  a  driver  of  a  public  or  private  vehicle,  not  owned  or 
controlled  by  the  passenger,  who  is  himself  without  fault,  will  not  con- 
stitute a  bar  to  the  right  of  the  passenger  to  recover  against  the  rail- 
road company  for  injuries  I'eceived  by  a  <ullisi(iii  of  its  1i:iiii  wiili 
the  vehicle.  I'hiladelphia,  W.  ^:  B.  R.  Co.  v.  Iluagland,  m  Md.  l-t'.i. 
7  Atl.  10.).  In  I'ennsylvania  it  was  at  one  time  held  that,  where  a 
passenger  is  injured  by  the  concurring  negligence  of  the  carrier  and 
a  third  person,  the  negligence  of  the  carrier  will  Ite  imputed  to  the 

(521) 


§  108  CARRIERS  OF  PASSENGERS.  (Ch.  14 

subserved  by  adhering  strictly  to  the  long  and  well 
established  principle  that,  where  one  has  received  an 
actionable  injnry  at  the  hands  of  two  or  more  wrong- 
doers, all,  however  numerous,  are  severally  liable  to 
him  for  the  full  amount  of  damages  occasioned  by  such 
injury,  and  the  plaintiff  in  such  case  has  election  to 
sue  all  jointly,  or  he  may  bring  his  separate  action 

pas-enger,  and  the  latter  caimot  recover  against  the  third  person,  but 
he  may  recover  against  the  carrier.  Lockhart  v.  Lichtentlialer  (lSt33) 
46  Pa.  St.  151.  "I  would  say  that  the  reason  for  the  rule  is  that 
It  better  accords  with  the  policy  of  the  law  to  hold  the  carrier  alone 
responsible  in  such  circumstances,  as  an  incentive  to  care  and  dili- 
gence. *  *  *  jt  would  be  altogether  more  just  to  hold  liable  him 
who  has  engaged  to  observe  the  highest  degree  of  diligence  and  care, 
and  has  been  compensated  for  so  doing,  rather  than  him  upon  whom 
no  such  obligation  rests,  and  who,  not  being  compensated  for  the  ob- 
servance of  such  a  degree  of  care,  acts  only  on  the  duty  to  observe 
ordinary  care,  and  may  not  be  aware  even  of  the  presence  of  a  party 
who  might  be  injured."  This  case  was  followed  in  Philadelphia  i*c 
R.  R.  Co.  v.  Boyer,  97  Pa.  St.  91.  But  these  cases  and  the  English 
<?ases  were  criticised  in  Dean  v.  Railroad  Co.,  129  Pa.  St.  520.  18 
Atl.  71S,  and  were  overruled  in  Bunting  v.  Hogsett,  139  Pa.  St.  363, 
21  Atl.  31,  33,  34.  In  this  last  case  it  was  said:  "If  a  person  is  in- 
jured by  the  concurrent  and  contributory  negligence  of  two  persons, 
one  of  them  being  at  the  time  the  common  carrier  of  his  person,  there 
is  no  reason,  founded  in  public  policy  or  otherwise,  which  would  re- 
lease one  of  them,  and  hold  the  other.  It  is  true,  the  cai'rier  may 
be  subjected  to  a  higher  degree  of  care  than  his  co-tort  feasor;  but 
this  affords  no  reason  why  either  or  both  of  them  should  not  be  held 
to  that  degree  of  care,  respectively,  which  the  law  imposes  upon  them, 
and  to  be  answerable  in  damages  accordingly.  The  general  rule  un- 
doubtedly is,  if  a  person  suffers  injury  from  the  joint  negligence  of 
two  parties,  and  both  are  negligent  in  a  manner  which  contributes  to 
the  injury,  they  are  liable  jointly  and  severally,  and  it  would  seem  in 
principle  to  be  a  matter  of  no  consequence  that  one  of  them  is  a  com- 
mon carrier.  Neither  the  comparative  degree  of  care  required,  nor 
the  comparative  degree  of  culpability  established,  can  affect  the  lia- 
bility of  either." 
(522) 


Ch.    14)  NEGLIGENCE    OF    THIRD    PERSONS.  §    198 

against  each  or  any  one  of  the  wrongdoers.  To  sanc- 
tion a  departure  from  this  fundamental  principle  in  the 
laAv  of  torts  would  create  an  anomaly  in  the  law,  not 
demanded  by  justice,  convenience,  or  public  policy."  ' 
This  principle  is  not  confined  to  passengers  on  ordinary 
railroad  trains,  but  extends  to  passengers  on  street 
cars;  and  it  is  quite  generally  held  that,  where  a  pas- 
senger on  a  street  car  is  injured  in  a  collision  with  a 
railroad  ti*ain  at  a  crossing,  the  fact  that  the  employes 
of  the  street-car  company  were  negligent  does  not  re- 
lieve the  railroad  company  from  liability  for  its  negli- 
gence.® So,  a  passenger  on  a  stagecoach  is  not  charge- 
able with  the  negligence  of  the  driver,  so  as  to  preclude 
recovery  against  a  third  person,  whose  negligence  con- 
curred with  that  of  the  driver  in  producing  the  injury.'' 
So,  one  who  hires  a  public  hack,  and  gives  the  driver 

7  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Sliacklet,  lai  111.  ?,r,4. 

8  Georgia  Pac-.  Ry.  Co.  v.  Hughes.  87  Ala.  GIO,  G  South.  413;  Rail- 
■R'ay  Co.  V.  Harrell,  58  Ark.  454,  25  S.  W.  117,  disapproving  Duggius  v. 
Watson,  15  Ark.  118;  Louisville,  C.  &  L.  R.  Co.  v.  Case's  Adni'r,  0 
Bush,  728,  735;  Stewart's  Case,  2  Mote.  (Ky.)  119;  Kuttner  v.  Rail- 
way Co.,  29  Mo.  App.  502;  Bennett  v.  Transixjrtatiun  Co.,  30  N.  J. 
Law,  225;  McCallum  v.  Railroad  Co..  .'',8  llun  (N.  Y.)  .">(»;  O'Toole  v. 
Railroad,  158  Pa.  St.  99,  27  Atl.  737;  Downey  v.  Traction  Co.,  101  Pa. 
St.  588,  29  Atl.  128,  14  Pa.  Co.  Ct.  R.  2.-.1;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Pendry,  87  Tex.  553,  29  S.  W.  1038;  Whelan  v.  Railroad  Co..  38  Fed. 
15;  Wo(5ii!ey  v.  Raili-oad  Co.,  8  Mat-key,  542.  It  was  at  one  time 
held  in  New  York  that  a  passenger  in  a  horse  car  is  chargeable  with 
the  negligence  of  llie  driver,  ami  cannot  recover  against  a  steam-rail- 
road company  for  injuries  caused  by  the  cmicuiring  negligence  of  its 
servants  and  of  the  street-car  driver.  Mooncy  v.  Railroad  Co.,  5 
Rob.  (N.  Y.)  548.     But  this  is  no  longer  the  law. 

»  Becke  v.  Railway  Co.,  102  Mo.  .544,  13  S.  W.  10.5:'..  in  New  York 
it  was  held  at  one  time  that  the  negligence  of  the  driver  of  a  stage 
■coach  will  be  imputed  to  the  passenger.     Brown  v.  Railroad,  32  N.  Y. 


§  198  CARRIERS  OF  PASSENGERS.  (Ch.  14 

directions  as  to  tlie  place  he  wishes  to  be  conveyed, 
but  exercises  no  other  control  over  the  conduct  of  the 
driver,  is  not  responsible  for  his  acts  or  negligence, 
or  prevented  from  recovering  against  a  railroad  com- 
pany for  injuries  suffered  from  a  collision  of  its  train 
with  the  hack,  caused  by  the  negligence  of  both  the 
managers  of  the  train  and  of  the  driver.^'* 

On  the  question  whether  the  negligence  of  the  driver 
of  a  private  vehicle  can  be  imputed  to  his  invited  guest 
riding  with  him,  there  is  a  conflict  of  authority  in  the 
United  States.  But  the  decided  weight  of  authority 
is  in  favor  of  the  proposition  that  the  negligence  of 
the  driver  or  owner  of  a  private  vehicle  is  not  imput- 
able to  another  person  riding  by  invitation  in  the 
vehicle,  unless  that  person  had  some  right,  or  was 
under  some  duty,  to  control  or  influence  the  driver's 
conduct/^      Such  right  might  arise  by  reason  of  the 

597.  But  this  case  must  be  taken  to  be  overruled  by  Robinson  v. 
Railroad  Co.,  G6  N.  Y.  11. 

10  Little  V.  Hackett,  116  U.  S.  366,  6  Sup.  Ct.  391.  This  case  was 
referred  to  in  The  Bernina,  13  App.  Cas.  1,  10,  as  follows:  "That  was 
a  decision  by  the  supreme  court  of  the  United  States,  whose  decisions, 
on  account  of  its  high  character  for  learning  and  ability,  are  always 
to  be  regarded  with  respect."  The  same  principle  is  announced  in 
the  following  cases:  Missouri  Pac.  Ry.  Co.  v.  Texas  Pac.  Ry.  Co.. 
41  Fed.  316;  East  Tennessee,  V.  &  G.  Ry.  Co.  v.  Markens,  88  Ga.  60, 
13  S.  E.  855;  Perez  v.  Railroad  Co.,  47  La.  Ann.  1391,  17  South,  869; 
Randolph  v.  O'Riordon,  155  Mass.  331,  29  N.  E.  5S3;  New  York,  L.  E. 
&  W.  R.  Co.  V.  Steinbrenner,  47  N.  J.  Law,  161. 

11  Elyton  Land  Co.  v.  Mingea,  89  Ala.  521,  7  South.  666;  Pitts- 
burgh, C.  &  St.  L.  R.  Co.  V.  Spencer,  98  Ind.186;  Town  of  Knightstown 
V.  Musgrove,  116  Ind.  121,  18  N.  E.  452;  City  of  Michigan  City  v. 
Boeckling,  122  Ind.  39,  23  N.  E.  518;  Lake  Shore  &  M.  S.  Ry.  Co.  y. 
Mclntcsh,  140  Ind.  261,  272,  38  N.  E.  476;  Lake  Shore  &  M.  S.  Ry.  Co, 

(524) 


Ch.    14)  NEGLIGENCE    OF    THIRD    PERSONS.  §    lOS 

two  being  engaged  at  the  time  in  a  joint  enterprise 
for  their  common  benefit;  an(i  if  iliis  were  not  so, 
the  duty  miulit  arise  from  obvious  or  Ivuown  incompe- 
teney  of  the  driver,  resulting  from  drunlvenness  or 
other  cause.'^  So,  the  negligence  of  a  servant,  to 
whom  the  master  has  committed  the  control  of  the 

V.  Boyts  (luU.  App.)  4:^  X.  E.  6(37;    Lake  Shore  &  M.  S.  Ry.  Co.  v. 
Boj-ts  (Ind.  App.)  45  X.  E.  812;    City  of  Leavemvortli  v.  Hatch  (Kau. 
Sup.)  45  Pac.  Co;    Cahill  v.  Railway  Co.,  92  Ky.  845.  IS  S.  W.  2:    Bal- 
timore &  O.  R.  Co.  V.  State,  79  Md.  385,  29  Atl.  518;    Alabama  &  V. 
Ry.  Co.  V.  Davis,  69  Miss.  444,  13  South.  693;    Follmau  v.  City  of 
Mankato,  35  Minn.  522,  29  X.  W.  317;    Xoyes  v.  Boscawen,  64  X.  H. 
361.  10  Atl.  690;    Robinson  v.  Railroad  Co..  66  X.  Y.  11;    Kessler  v. 
Railroad  Co.,  3  App.  Div.  426.  38  X.  Y.  Supp.  799;    Strauss  v.  Railway 
Co.,  6  App.  Div.  264,  39  X.  Y.  Supp.  998;    Street-Railway  Co.  v.  Eadie. 
43  Ohio  St.  91.  1  X.  E.  519;    Carlisle  Borough  v.  Brisbane.  113  Pa.  St.. 
544.  6  Atl.  372;    Carr  v.  Easton  City,  142  Pa.  St.  139,  21  Atl.  822;    Gal- 
veston, H.  &  S.  A.  Ry.  Co.  v.  Kultac,  72  Tex.  643,  11  S.  W.  127;    Union 
Pac.  Ry.  Co.  v.  Lapsley,  2  C.  C.  A.  149.  51  Fed.  174.  aflirming  50  Fed. 
172;    Pyle  v.   Clark.   79  Fed.   744.   attiruiing  75  Fed.  614.     In  Iowa 
the  negligence  of  a  driver  of  a  vehicle  will  not  be  imputed  to  a  pas- 
senger or  invited  guest.     Xesbit  v.  Town  of  Garner.  75  Iowa,  314,  39 
X.  W.  516.     But  (1)  when  several  parties  are  engaged  in  a  common 
enterprise,  and  one  is  in.1ured  by  the  joint  negligence  of  one  of  his  as- 
sociates and  another,  the  negligence  of  his  associates  will  be  impute.l 
to  him,  and  will  defeat  all  right  of  recovery  against  the  other  party; 
and  (2)  when  a  person  is  in.iured  through  the  common  negligence  of 
one  who.  from  their  relation,  is  bound  to  care  for  and  protect  him. 
and  another,  the  negligence  of  the  former  will  be  imputed  to  the  lat- 
ter, and  will  defeat  a  recovery  against  the  other  party.     Payne  v. 
Railroad  Co.,  39  Iowa,  523;    Yahn  v.  City  of  Ottumwa,  (30  Iowa,  429. 
15  X.  W.  257;    Slater  v.  Railway  Co.,  71  Iowa.  209,  32  X.  W.  2i;4: 
Stafford  v.  City  of  Oskaloi  sai,  57  Iowa,  74S,  11  X,  W.  66S. 

12  Roach  V.  Railroad  Co.,  93  Ga.  785,  21  S.  E.  67.  The  nogllgence 
of  the  driver  of  a  private  vehicle  will  be  imputed  to  a  person  riding 
M-ith  him,  where  the  vehicle  is  being  used  by  both  for  the  transpnria- 
tion  of  their  personal  property.     Omaha  .^-  R.  V.  Ry.  Co.  v.  Talbot. 

48  Xeb.  627.  67  X.  A\'.  599. 

(525) 


§  198  CARRIERS  OP  PASSENGERS.  (Ch.  14 

horses,  and  with  whom  he  is  riding,  is  imputable  to  the 
master.^^  In  some  of  the  states,  however,  the  negli- 
gence of  the  owner  and  driver  of  a  private  vehicle  is 
imputable  to  one  voluntarily  riding  with  him  by  invi- 
tation, and  defeats  the  right  of  the  latter  to  recover 
damages  against  a  third  person  for  injuries  caused  by 
the  concurring  negligence  of  both.^*  In  New  York  it 
is  held  that  the  rule  that  the  negligence  of  a  driver 
of  a  vehicle  may  not  be  imputed  to  a  passenger  in  an 
action  for  injuries  alleged  to  have  been  caused  by  de- 

13  Smith  V.  Railroad  Co.,  4  App.  Div.  493,  38  N.  Y.  Supp.  666.  But 
a  motlier  riding  in  a  cab  driven  by  ber  son  is  not  cliargeable  with 
contributory  negligence  on  account  of  his  want  of  care.  Weldon  v. 
Railroad  Co.,  3  App.  Div.  370,  38  ^.  Y.  Supp.  206.  One  who,  unin- 
vited or  without  the  knowledge  of  the  driver  of  a  private  vehicle,  gets 
upon  such  vehicle  for  the  purpose  of  riding,  and  rides  thereon,  does 
not  thereby  assume  the  relation  of  master  or  superior  to  such  driver; 
and  therefore  he  is  not  chargeable  with  the  negligence  of  the  driver 
in  driving  or  managing  siuch  vehicle.  Cincinnati  St.  Ry.  Co.  v.  Wright 
(Ohio)  43  X.  E.  688. 

14  Prideaux  v.  City  of  Mineral  Point.  43  Wis.  513;  Otis  v.  Town 
of  Janesville,  47  AVis.  422,  2  N.  W.  783;  Mullen  v.  City  of  Owosso, 
100  Mich.  103.  58  N.  W.  GOd  (following  Lake  Shore  &  M.  S.  R.  Co. 
V.  Miller,  25  ;Mich.  274,  which  the  court  said  has  never  been  departed 
from);  Whittaker  v.  City  of  Helena.  14  Mont.  124,  35  Pac.  904.  In 
Prideaux  v.  City  of  Mineral  Point,  43  AVis.  513,  Ryan,  C.  J.,  said:  "A 
woman  may  and  should  refuse  to  ride  with  a  man  if  she  dislikes  or 
distrusts  the  man  or  his  horse  or  his  carriage.  But,  if  she  volun- 
tarily accepts  his  invitation  to  ride,  the  man  tnay,  indeed,  become  lia- 
ble to  her  for  gross  negligence;  but,  as  to  third  persons,  the  man  is 
her  agent  to  drive  her;  she  takes  man  and  horse  and  carriage  for 
the  jaunt,  for  better,  for  worse."  If  the  driver  of  a  vehicle  is  to  be 
regarded  as  the  agent  of  his  invited  gues;t,  riding  with  him,  it  would 
follow  that  the  guest  is  liable  to  third  persons  for  the  negligence  of  the 
driver.  It  would  be  a  ditficult  task  for  the  eloquence  of  even  Chief 
Justice  Ryan  to  establi-sh  this  proposition. 

(52G) 


Ch.    14)  XEGLIGEXCK    OF    THIRD    PERSONS.  §    19i> 

feiidant's  neglij;enoe  is  only  applicable  to  cases  where 
the  relation  of  master  and  servant  and  ])rin(ipal  ;in<l 
agent  does  not  exist,  or  where  the  passenger  is  si-ated 
aAvay  from  the  driver,  or  is  separated  fi-oni  liini  b.v  an 
inclosnre,  and  is  withont  opportnnity  to  discover  dan- 
ger and  to  inform  the  driver  of  it.^^ 

Of  course,  it  is  no  less  the  duty  of  a  i)assenger,  where 
he  has  the  opportunity  to  do  so,  than  of  the  driver,  to 
learn  of  danger,  and  avoid  it,  if  practicable;  ^'^  and  a 
person  riding  in  a  private  vehicle  is  guilty  of  contribu- 
tory- negligence  in  willingly  joining  with  the  driver 
in  testing  the  danger  arising  from  an  obvious  defect 
in  a  highway,  and  cannot  recover  from  municipal  au- 
thorities for  losses  incurred  through  such  defect.^^ 

§  199.      SAME— OF  PARENT  TO  CHILD. 

By  the  Tveight  of  authority,  negligence  of  the  cus- 
todian of  a  child  of  tender  years  will  not  be 
imputed  to  the  child,  so  as  to  bar  his  cause  of 
action  against  another,  -whose  negligence  con- 
curred with  that  of  the  custodian  in  producing 
the  injury  to  the  child;  but  the  negligence  of 
the  parent  or  guardian  in  the  custody  of  the 
child  w^ill  bar  the  parent's  or  guardian's  cause 
of  action  for  the  damages  he  has  sustained  by 
reason  of  the  child's  injuries. 

The  rule  imi)uting  to  a  chihl  of  tender  years  the 
negligence  of  its  parent,  guaidian,  or  custodian  wa& 

jr.  Robinson  v.  Itailroad  Co.,  CC,  N.  Y.  11. 

10  Brickcll  v.  Railroad  Co.,  rj(»  N.  Y.  lil)0,  1.'4  X.  K.  +49. 

17  Crcsrent  Tp.  v,  Audorson,  114  Pa.  St.  043,  8  Atl.  379. 

(527) 


§  199  CARRIERS  OF  PASSENGERS.  (Ch.  1-i 

introduced  into  tlie  law  of  this  country  by  Hartfield 
Y.  Eoper/  decided  in  1S39,  by  one  of  tin?  New  York 
courts.  Tlie  reasoning  employed  in  support  of  this 
rule  is  thus  stated  by  Cowen,  J.,  who  delivered  the 
opinion  in  that  case:  "An  infant  is  not  sui  juris.  He 
belongs  to  another,  to  whose  discretion  the  care  of 
his  person  is  exclusively  confided.  That  person  is 
agent  and  keeper  for  that  purpose;  and,  in  respect  to 
third  persons,  his  act  must  be  deemed  that  of  the  in- 
fant; his  neglect,  the  infant's  neglect."  The  principh^ 
thus  announced  has  since  been  recognized  and  is  still 
adhered  to  by  the  courts  of  the  state  of  New  York,- 
has  received  the  approval  of  a  number  of  other  courts 

§  199.  1  21  Wend.  61,5.  In  this  case  it  was  specifically  held  that 
the  negligence  of  the  parents  of  a  two  year  old  child  in  permitting  it 
to  be  in  a  highway  is  imputable  to  the  child,  and  bars  an  action  by 
his  next  friend  for  injuries  sustained  iu  being  negligently  run  over 
by  the  driver  of  a  wagon. 

2  Mangam  v.  Kailroad  Co.,  38  N.  Y.  4."):  Ihl  v.  Railroad  Co.,  47  X. 
Y.  317;  Cosgrove  v.  Ogden.  49  X.  Y.  2oo;  Morrison  v.  Railway  Co.. 
56  N.  Y.  302;  Thurber  v.  Railroad  Co.,  60  X.  Y.  333;  McGarry  v. 
Loomis,  63  X.  Y.  104;  Huerzeler  v.  Railroad  Co.,  1  Misc.  Rep.  130,  2(i 
N.  Y.  Supp.  676;  :\Ietcalfe  v.  Railway  Co.  (Sup.)  42  X.  Y.  Supp.  661. 
Thoiigh  the  negligence  of  a  driver  is  not  imputable  to  an  adult  pos- 
sessed of  judgment  and  the  right  of  self-control,  who  is  riding  with 
the  driver,  yet  the  negligence  of  the  driver  is  imputable  to  a  child  of 
tender  years  riding  with  him.  since  he  has  the  care  and  ciistody  of  the 
child.  Metcalfe  v.  Railway  Co.  (Sup.)  42  X.  Y.  Supp.  661.  The  neg- 
ligence of  a  father  will  not  be  imputed  to  his  infant  child,  about  21 
months  old,  where  the  child  was  injured  while  in  the  mother's  arms, 
in  a  carriage  driven  by  the  father,  as  in  such  case  the  child  was  in  the 
immediate  custody  of  the  mother,  and  not  of  the  father.  Hennessey 
V.  Railroad  Co.,  6  App.  Div.  206,  39  X.  Y.  Supp.  805.  It  has  also 
been  held  that  the  negligence  of  the  custodian  of  a  lunatic  wiU  be  im- 
puted to  the  lunatic.  Willetts  v.  Railroad  Co.,  14  Barb.  (X.  Y.)  585. 
(52S) 


Ch.    14)  iNEGLlGEN'CE    OF    THIKD    PERSONS.  §1^9 

of  equally  biiili  standing-,  and  has  been  accepted  and 
applied  in  California,^  Delaware,*  Indiana,'^  Maine," 
Maryland,"  Massachusetts,^  and  Minnesota."  In  Eng- 
land, too,  the  doctrine  has  been  adopted  on  the  ground 
of  the  "identity"  of  the  child  and  its  custodian/" 

But  the  doctrine  of  Hartfield  v.  Roper  was  challengeii 
at  an  early  day  in  this  country,^^  and  has  been  repudi- 
ated by  most  of  our  courts/-      "Infants  have  legal 

3  McQuilken  v.  Railroad  Co.,  64  Cal.  463,  2  Pac.  46;  Meeks  v.  Rail- 
road Co..  52  Cal.  602,  56  Cal.  513;  Karr  v.  Parks,  40  Cal.  1S8;  Scliier- 
hold  V.  Railroad  Co.,  Id.  447. 

4  Kyne  v.  Railroad  Co.,  8  Houst.  185,  14  Atl.  922. 

■  5  Citizens'  St.  R.  Co.  v.  Stoddard,  10  Ind.  App.  278,  282,  37  N.  E. 
723:  Terre  Haute  St.  Ry.  Co.  v.  Tappenbeck,  9  Ind.  App.  422,  36  X. 
E.  915;  Pittsburgh,  F.  W.  &  C.  Ry.  Co.  v.  Vining's  Adm'r,  27  Ind. 
513;  Indianapolis,  P.  &  C.  R.  Co.  v.  Pitzer,  109  Ind.  179,  6  X.  E.  310. 
and  10  N.  E.  70;  Lafayette  &  I.  R.  Co.  v.  Huffman,  2S  Ind.  287; 
Hathaway  v.  RaihA-ay  Co.,  46  Ind.  25. 

6  Leslie  v.  City  of  Lewiston,  62  Me.  468;  O'Brien  v.  McGlinchy,  68 
Me.  .j.j2. 

-  McMabon  v.  Railway  Co.,  39  Md.  438;  Baltimore  City  Pas-sengor 
Ry.  Co.  V.  McDonnell,  43  Md.  .■i34. 

8  Gibbons  v.  Williams.  135  Mass.  .333;  McGeary  v.  Kailrnail  Co..  Id. 
363;  O'Connor  v.  Railroad  Corp.,  Id.  3.52;  Holly  v.  Gaslight  Co.,  8 
Gray  (Ma.ss.)  123;  Wright  v.  Kailrcad  Co.,  4  Allen  (Mass.)  283;  Calla- 
han V.  Bean,  9  Allen  (Mass.)  401;   Lynch  v.  Smith,  104  Mass.  .->2. 

»  Reed  v.  Railway  Co.,  34  Minn.  557,  27  X.  W.  77;  Fitzgerald  v. 
Railroad  Co.,  29  Minn.  336,  13  N.  W.  16S;  City  of  St.  I'aul  v.  Kuby. 
8  Minn.  154  (Gil.  125). 

10  Waite  V.  Railway  Co.  (1858)  El.,  Bl.  &  El.  719.  In  this  case  it 
was  held  that  the  negligence  of  a  grandmother  in  attempting  to  cross 
a  railroad  track  at  a  station  in  the  face  of  an  advancing  train  must 
be  imputed  to  the  child. 

11  Kol>inson  v.  Cone  (1850)  22  Vt.  213.  per  Rcdlicld,  .1. 

12  Even  m  states  where  the  doctrine  is  recognized,  it  has  no  ai)pli- 
eation  in  a  case  where,  notwitlist.inding  negligence  on  the  part  of  the 
parents   in  permitting  their  child  to  be  exposed   to  peril,   the  child 

V.  1  FET.c.\n.i'AS. — 34  (52*.)) 


§    1!)9  CARRIERS   OF  PASSENGERS.  (Ch.    14 

riiilits  distinct  from  tbeir  parents,  among  wliicli  is  the 
right  to  security  from  personal  injuries  occasioned  by 
the  negligence  or  willful  wrong  of  others.  Negligence 
or  dereliction  of  the  parent  or  custodian  of  children 
is  no  justification  for  others  to  injure  them."  ^^  "Noth- 
ing could  be  more  to  the  prejudice  of  an  infant  than  to 
conver-t,  by  construction  of  law,  the  connection  be- 
tween himself  and  his  custodian  into  an  agency  to 
which  the  harsh  rule  of  respondeat  superior  should  be 
applicable.  The  answerableness  of  the  principal  for 
the  authorized  acts  of  his  agent  is  not  so  much  the 
dictate  of  natural  justice  as  of  public  policy,  and  has 
arisen  with  some  propriety  from  the  circumstances 
that  the  creation  of  the  agency  is  a  voluntary  act,  and 
that  it  can  be  controlled  and  ended  at  the  will  of  its 
creator.  But,  in  the  relationship  between  the  infant 
and  its  keeper,  all  these  decisive  characteristics  are 
entirely  wanting.  The  law  imposes  the  keeper  on  the 
child,  who,  of  course,  can  neither  control  nor  remove 
him;  and  the  injustice,  therefore,  of  making  the  latter 
responsible,  in  any  measure  whatever,  for  the  acts  of 
the  former,  would  seem  to  be  quite  evident.  Such 
subjectivity  would  be  hostile  in  every  respect  to  the 
natural  rights  of  the  infant,  and  consequently  cannot, 
with  any  show  of  reason,  be  introduced  into  that  pro- 
vision which  both  necessity  and  law  establish  for  his 
protection.      Nor  can  it  be  said  that  its  existence  is 

itself  exercised  due  care.  O'Brien  v.  McGlinchy,  68  Me.  552;  Lynch 
V.  Smith,  104  Mass.  .52:  Lanueu  v.  Gas  Light  Co.,  4G  Barb.  (N.  Y.) 
264;  Ihl  V.  Railroad  Co.,  47  N.  Y.  317;  McGarry  v.  Loomis,  03  N.  Y. 
104;  Huerzeler  v.  Railruad  Co.,  1  Misc.  Rep.  136,  20  N.  Y.  Supp.  676. 
13  Westbrook  v.  Raik-tad  Co.,  m  Miss.  560,  6  South.  321. 
(530) 


Ch.    14)  NEGLIGENCE    OF    THIRD    PERSONS.  §    199 

necessary  to  give  just  enforcement  to  the  rights  of 
others.  When  it  haj^pens  that  both  the  infant  and 
its  custodian  have  been  injured  by  the  co-operative 
negligence  of  such  custodian  and  a  third  party,  it 
seems  reasonable,  at  least  in  some  degree,  that  the 
latter  should  be  enabled  to  say  to  the  custodian:  'You 
and  I,  by  our  common  carelessness,  have  done  this 
wrong,  and  therefore  neither  can  look  to  the  other  for 
redress.'  But  when  such  wrongdoer  savs  to  the  in- 
faiit:  'Your  guardian  and  I,  by  our  joint  misconduct, 
have  brought  this  loss  upon  you.  Consequently  you 
have  no  right  of  action  against  me,  but  you  must  look 
for  your  indemnification  to  your  guardian  alone,' — a 
proposition  is  stated  that  appears  to  be  without  any 
basis  either  in  good  sense  or  law.  The  conversion  of 
the  infant,  who  is  entirely  free  from  fault,  into  a  wrong-^ 
doer  by  imputation,  is  a  logical  contrivance,  uncon- 
genial Avith  the  spirit  of  jurisprudence.  The  sensible 
and  legal  doctrine  is  this:  An  infant  of  tender  j^ears 
cannot  be  charged  with  negligence,  nor  can  he  be  so 
charged  with  the  commission  of  such  fault  by  substi- 
tution, for  he  is  incapable  of  appointing- an  agent;  the 
consequence  being  that  he  can  in  no  case  be  considered 
to  be  the  blamable  cause,  either  in  whole  or  in  part, 
of  his  own  injury.  There  is  no  injustice  or  hardship 
in  requiring  all  wrongdoers  to  be  ansAverablo  to  a  per- 
son who  is  incapable  either  of  self-protection  or  of  be- 
ing a  participator  in  their  misfeasance."  ^*  For  reasons 
Buch  as  these,  the  doctrine  has  been  rejected  by  the 

14  Newman  v.  Hailn  ad  Co.,  52  N.  J.  Law,  440,  I'J  All.  1102. 

(Wl) 


§    lyj  CARRIERS   OF  PASSENGERS.  (Ch.    14 

courts  of  Alabama, ^^  Arkansas/"  Connecticut,^'  Geor- 
gia,^* Illinois,^''  Iowa,-°  Kansas,^^  Louisiana,"  Michi- 
gan,-" ]Mississij)pi,-*  Missouri,'^  Nebraslia,-®  New  Jer- 
sey,-' Nortli  Carolina,-'*  Oliio,-^  Pennsylvania,^*'  Ten- 
nessee,^^ Texas,^-  A^ermont,^"  and  Virginia.^* 

>5  Goverumeut  St.  R.  Co.  v,  Hanlon,  53  Ala.  70;  Pratt  Coal  &  Iron 
Co.  V.  Brawley,  S3  Ala.  371,  3  South.  555.  In  the  tirst  of  these  cases 
it  was  said:  "It  seems  repulsive  to  our  seuse  of  justice  that,  because 
the  parent  is  negligent  of  the  cliild,  others  may  with  impunity  be 
equally  negligent  of  its  helplessness,  and  ecpially  indifferent  of  its 
necessities.  The  law  may  not  compel  active  charity  for  the  relief  of 
.  tlie  child,  but  it  does  shield  him  from  positive  wrong  or  neglect." 

ic  St.  Louis,  I.  M.  &.  S.  Ry.  Co.  v.  Rexroad,  59  Ark.  180,  26  S.  W. 
1037. 

1'  Daley  v.  Railroad  Co.,  26  Conn.  591. 

18  Ferguson  v.  Railway  Co.,  77  Ga.  102;  Atlanta  &  C.  Air- Line  Ry.- 
Co.  v.  Gravitt,  93  Ga.  309.  20  S.  E.  55U. 

i»  Chicago  City  Ry.  Co.  v.  Wilcox.  138  111.  370,  27  N.  E.  899,  affirm- 
ing 33  111.  App.  4.jO;  Elgin,  J.  &  E.  Ry.  Co.  v.  Raymond,  47  111.  App. 
:242. 

20  Wymore  v.  Mahaska  Co.,  78  Iowa,  396,  43  N.  TV.  264. 

21  Union  Pac.  Ry.  Co.  v.  Young,  57  Kan.  168,  45  Pac.  .580.  But  see, 
contra.  Smith  v.  Railroad  Co.,  25  Kan.  738,  28  Kan.  .541. 

22  Westerfield  v.  Levis,  43  La.  Ann.  63,  9  South.  52. 

2  3  Battishill  v.  Humphreys,  64  Mich.  494,  31  N.  W.  894;  Shippy  v. 
Village  of  An  Sable.  85  Mich.  280.  48  N.  W.  584:  :Mullen  v.  City  of 
Owosso,  100  :Mich.  103,  58  N.  W.  663. 

2  4  Westbrook  v.  Railroad  Co.,  66  Miss.  560,  6  South.  321. 

2  5  Winters  v.  Railway  Co.,  99  Mo.  509,  12  S.  W.  652. 

26  Huff  V.  Ames,  16  Neb.  139,  19  N.  W.  623. 

27  Newman  v.  Railroad  Co.,  52  N.  J,  Law,  446,  19  Atl.  1102. 

28  Bottoms  V.  Railroad  Co.,  114  N.  C.  699.  19  S.  E.  730. 

2  8  Belief ontaine  &  I.  R.  Co.  v.  Snyder,  18  Ohio  St.  399:  Cleveland, 
C,  C.  &  I.  R.  Co.  V,  Manson,  30  Ohio  St.  451;  Street-Railway  Co.  v. 
Eadie,  43  Ohio  St.  91,  1  N.  E.  519. 

so-3  4  See  notes  30-,i4  on  following  page. 
(532) 


Ch.    14)  NEGLIGEiNCE    OF    THIRD    PERSONS.  §    199^ 

Of  coiu'se,  if  Tlic  iiejiligonce  of  a  child's  custodian  is 
the  sole  or  the  proximate  cause  of  injuries  to  it,  there 
can  be  no  recovery  against  a  third  person,  whose  negli- 
o-ence  contributed  only  remotely  to  the  result." 

A  different  question  is  presented  when  the  action  is 
brought,  not  by  the  child  (.r  in  the  child's  behalf,  but 
by  the  parent  or  guardian,  for  the  damages  he  has 
sustained  by  reason  of  the  loss  of  the  child's  services, 
medical  expenses,  etc.      In  this  class  of  case^*  it  is 

3  0  Erie  City  Pass.  Ry.  Co.  v.  Schuster,  llo  Va.  St,  411i,  G  Atl.  '2y\\}; 
North  rennsylvania  R.  Co.  v.  Mahoney,  57  Ta.  St.  187;  Kay  v.  Raj^ 
road  Co..  05  Pa.  St.  2G9. 

31  Whirley  v.  Whiteman,  1  Head  (Tenn.)  609. 

3  2  Texas  &  P.  Ry.  Co.  v.  Beckworth  (Tex.  Civ.  App.)  32  S.  W.  800; 
Texas  &  P.  Ry.  Co.  v.  Fletcher,  6  Tex.  Civ.  App.  7;'.<).  26  S-  W.  446; 
Galveston,  H.  &  H.  Ry.  Co.  v.  Moore,  59  Tex.  64;  Williams  v.  liaU- 
road  Co..  60  Tex.  205. 

3  3  Robinson  v.  Cone.  22  Vt.  213. 

34  Triimbo's  Adm'r  v.  Street-Car  Co..  89  Va.  TSO.  17  S.  E.  124;  Nor--  ^ 
folk  &  W.  R.  Co.  V.  Groseclose's  Adm'r,  88  Va.  267.  13  S.  E.  454: 
Norfolk  &  P.  R.  Co.  v.  Ornisliy.  27  Grat.  (Va.^  4.55. 

3  5  A  three  year  old  child  injured  by  the  rudder  chain,  guarded  as  Is 
customaiT  on  steamships,  cannot  recover,  as  the  accident  is  attrib- 
utable solely  to  the  negligence  of  the  nurse,  who  permitted  it  to  run 
around  unattended.     The  Burgundia,  29  Fed.  464.     The  negligenoiv  of 
a  parent  or  guardian  having  in  charge  a  child  of  tender  years  will 
not  excuse  a  carrier  by  rail  from  using  all  the  means  in  its  power  to  • 
prevent  injury  to  the  child;   yet  if  the  negligence  of  the  parent  is  the 
proximate  cause  of  injury  to  the  child,  by  unnecessarily  and  impru 
dently  exposing  it  to  danger,  the  carrier  cannot  l>e  held  rcsjM^usihle,'. 
unless  it  is  shown  to  have  omitted  duties  the  discharge  of  which  would 
have  averted  the  injury.     Hence  the  negligence  of  a  fatlier  in  pl.R-ing 
his  child  on  the  lower  step  of  a  moving  car,  to  enable  thciii  to  leave 
(lUickly  when  the  train  should  come  to  a  stop  at  a  station,  precludes 
a  recovery  against  the  company  for  injuries  sustained  by  the  child  in 
falling  from  the  car  before  it  has  stopped.     Oliio  A:   M.  Ry.  Co-  v. 

Stratton,  78  111.  88. 

<533) 


§  199  CARRIERS  OF  PASSENGERS.  (Ch.  14 

settled  tbat  the  negligence  of  the  custodian  of  the 
child  is  a  good  defense.  The  reason  is  obvious.  It 
rests  upon  the  principle  that  one  whose  negligence  has 
contributed  to  bring  an  injury  upon  himself  cannot  re- 
cover from  another  whose  negligence  has  concurred 
in  producing  this  result.  Even  in  those  jurisdictions 
which  have  repudiated  the  doctrine  of  imputable  negli- 
gence, as  announced  in  Hartfield  v.  Iloper,  there  has 
been  no  departure  from  this  principle,  and  this  rule 
has  been  universally  recognized  and  strictly  enfor- 
ced.^'^ 

It  is  equally  well  settled  that,  though  the  father 
was  not  himself  present,  but  the  injury  to  the  child  oc- 
curred while  it  was  under  the  care  and  charge  of  an- 
other person,  to  whom  its  safety  had  been  intrusted, 
the  rule  would  still  apply  in  all  its  strictness.  It  be- 
ing the  imperative  legal  duty  of  the  father  to  guard 
*  and  shield  his  child  from  injury,  if  he  delegates  that 
duty  to  another,  he  is  legally  responsible  for  the  con- 
duct of  that  other,  whose  every  act  is,  in  legal  contem- 
plation, the  act  of  the  father  himself." 

3  6  Westbrook  v.  Railroad  Co.,  66  Miss.  560,  6  Soutli.  321;  Shippy  v. 
Village  of  Au  Sable,  S5  Mich.  280,  48  N.  W.  584;  Glassey  v.  Railway 
Co.,  57  Pa.  St.  172;  Erie  City  Pass.  Ry.  Co.  v.  Schuster,  113  Pa.  St. 
412,  6  Atl.  269;  Belief ontaine  Ry.  Co.  v.  Snyder,  24  Ohio  St.  670; 
Street-Railway  Co.  v.  Eadie.  43  Ohio  St.  91,  1  N.  E.  519;  AVilliams  v. 
Railroad  Co.,  60  Tex.  205;  Chicago  City  Ry.  Co.  v.  AVilcox,  138  lU. 
370,  27  N.  E,  899,  affirming  33  111.  App.  450;  Chicago  &  A.  R.  Co.  v. 
Logiie,  158  111.  621,  626,  42  N.  E,  53;  Pratt  Coal  &  Iron  Co.  v.  Brawley, 
83  Ala.  371,  3  South.  555;  Huff  v.  Ames,  16  Neb.  139,  19  N.  W.  623; 
Norfolk  &  W.  R.  Co.  v.  Grost'close's  Adm'r,  88  Va.  267,  13  S.  E.  454; 
Wymore  v.  Mahaska  Co.,  78  Iowa,  396,  43  N.  W.  264;  Jeffersonville, 
M.  &  I.  R.  Co.  V.  Bowen,  49  Ind.  154,  attirming  40  Ind.  545, 

87  Belief  ontaine  Ry.  Co.  v.  Snyder,  24  Ohio  St.  630. 
(534) 


Ch.    14)  NEGLIGENCE    OF    THIRD    PERSONS.  §    199 

WlietluM'  this  rule  should  be  extended  to  cover  a  case 
where  an  administrator  sues  for  the  wron<ifnl  liomi 
cide  of  a  child,  caused  by  the  concurrent  nejilijii-nce  of 
the  child's  parents  and  of  a  third  person,  but  to  wliich 
suit  neither  of  the  parents  is  a  party  plaintift",  is  a  ques- 
tion not  so  easy  of  deteruiination.  In  Illinois  it  has 
been  said  that  the  reason  for  the  rule  applies  equally 
to  such  a  case,  because  the  inevitable  result  of  such  a 
recovery  by  the  administrator  would  be  to  enrich  the 
child's  parents,  who  would  inherit  his  estate,  and  thus 
profit  b}'  their  own  gross  neglect  of  duty.^®  But  a 
contrary  view  was  expressed  by  the  supreme  court  of 
lowa.^"  Eobinson,  J.,  delivering  the  opinion,  directs 
attention  to  the  fact  that  the  administrator  seeks  to 
recover  in  the  right  of  the  child,  and  not  for  the  par- 
ents, and  adds:  "It  may  be  that  a  recovery  in  this 
case  will  result  in  conferring  an  undeserved  benelit 
upon  the  father,  but  that  is  a  matter  which  we  cannot 
investigate.  If  the  facts  are  such  that  the  child  could 
have  recovered  had  his  injuries  not  been  fatal,  his  ad- 
ministrator may  recover  the  full  amount  of  damages 
which  the  estate  of  the  child  sustained."  The  same 
position  has  been  taken  in  Virginia  *"  and  in  Georgia.*^ 

It  remains  to  notice  what  facts  will  constitute  uegli- 

38  Toledo,  W.  &  W.  Ry.  Co.  v.  Grable,  88  111.  441;  Chicago  &  N.  W. 
Ry.  Co.  V.  Schumilowsky,  8  111.  App.  G13;  Chicugo  City  Ry.  Co.  v. 
Wilcox,  33  IH.  App.  450;   Id.,  138  111.  370,  27  N.  E.  Slil). 

39  Wyrnore  v.  Malia.ska  Co.,  78  Iowa,  300,  43  N.  \N'.  L'(;t. 

40  Norfolk  &  W.  R.  Co.  v.  Grosoelose's  Adm'r,  88  \'a.  l'G7,  13  S.  E. 
454. 

41  Atlanta  &  C.  Air-Line  Ry.  Co.  v.  Cravitt,  03  Ca.  3G0,  -Jk  S.  E. 
550.  The  opinion  in  this  case  contains  an  e.vhaustive  and  ahli'  re- 
view of  all  the  learning  on  this  subject. 


§  199  CARRIERS  OF  PASSENGERS.  (Ch.  14 

gence  in  the  cnstodv  of  a  child,  so  far  as  this  question 
is  connected  with  the  subject  of  carriers.  It  has  been 
held  that  it  is  not  neiiligence  to  permit  a  child  six  or 
eight  3'ears  old  to  take  passage  in  a  street  car  Avithout 
a  protector/^  So,  a  mother  is  not  guilty  of  negligence 
in  sending  her  11  year  old  son  on  a  railroad  journey  of 
7  miles,  where  she  cautioned  him  of  the  dangers  of  the 
route  to  the  extent  of  her  knowledge,*^  or  in  sending  a 
12  year  old  boy  to  a  depot  to  meet  his  sister,  expected 
to  arrive  on  a  train.**  So,  it  is  not  per  se  negligence 
for  a  motlier  to  permit  a  12  year  old  boy  traveling  with 
her,  and  unable  to  find  a  seat  in  the  car  with  her,  to  go 
into  another  car.*^ 

4  2  East  Saginaw  City  Ry.  Co.  v.  Bolin,  27  Mich.  503;  Buck  v. 
PoM-er  Co.,  46  Mo.  App.  555;  Drew  v.  Railroad  Co.,  26  N.  Y.  49,  1 
Abb.  Dec.  (N.  Y.)  556,  *42  X.  Y.  429. 

4  3  Hemmingway  v.  Railway  Co.,  72  Wis.  42,  37  N.  W.  804. 

44  New  York,  C.  &  St.  L.  R.  Co.  v.  Musbrusli,  11  Ind.  App.  192,  37 
K.  E.  9.54,  3S  N.  E.  871. 

4  j  Downs  V.  Railroad  Co.,  47  N.  Y.  So.  A  seven  year  old  boy,  wha 
was  a  steerage  passenger  on  board  a  steamsbip,  with  bis  father  and 
mother,  got  up  from  his  seat  on  the  deck,  where  all  passengers  had 
been  assembled  by  order  of  the  captain,  and  attempted  to  follow  his 
father  for  a  drink  of  water.  In  so  doing,  he  was  crowded  by  his  fel- 
low passengers  against  an  exposed  rudder  chain,  on  which  he  placed 
his  foot.  It  was  immediately  drawn  into  a  block,  and  crushed.  Held, 
that  a  finding  by  the  jury  that  plaintiff  was  not  on  the  deck  unat- 
tended, and  that  his  larents  exercised  ordinary  care  for  his  safety, 
was  sustained  by  the  evidence.  Garoni  v.  Compagnie  Nationale  De 
Navigation  (Com.  PI.)  14  N.  Y.  Supp.  797,  affirmed  in  131  N.  Y,  614, 
30  X.  E.  S65. 

(536) 


Ch.    14)  NEGLIGENCE    OF    THIRD    I'EHSuNS.  §    200- 

§  200.     SAME— OF  HUSBAND  TO   WIFE. 

At.  common  law,  the  iieiili<2;ence  of  the  husband,  con- 
curring with  that  of  a  third  j)erson  in  prodncinj^  injury 
to  the  wife,  bars  reeover^'  against  the  third  person. 
The  reason  is  that  at  common  law  the  recovery  would 
be  for  the  benefit  of  the  husband,  who  must  be  a  pai*ty 
to  the  action,  and  who  has  the  right  to  reduce  all  the 
wife's  clioses  in  action  to  his  possession.  The  question 
in  each  state  would  therefore  seem  to  be  how  far  the 
common-law  rule  respecting  the  property  rights  of  mar- 
ried women  has  been  abrogated  by  statute. 

In  New  Jersey  ^  it  has  been  held  that  the  common- 
law  rule  has  not  been  changed  by  the  married  woman's 
statute,  which  declares  that  the  real  and  personal 
property  of  every  married  woman,  and  the  rents,  is- 
sues, and  profits  thereof,  shall  be  her  sole  and  separate 
property.  Personal  torts  do  not  create  rights  of  prop- 
erty. The  right  to  sue  for  such  torts  is  not  assigna- 
ble, and  they  do  not  survive  the  death  of  the  injured 
person.  80,  in  California  "  and  in  Texas  ^  the  nc'g- 
ligence  of  a  husband,  concurring  with  that  of  a  thii-d' 
person  in  injuring  his  wife,  will  be  imputed  l<>  her, 
because  the  right  to  recover  for  such  injuries  is  com- 
munity property,  which  the  husband  has  the  riglit  to 
control.     So,  in  Illinois*  it  has  been  licld  tlmt,  where 

§  200.    1  Pennsylvania  K.  Co.  v.  Goodeuougli,  55  N.  .T.  Law,  577,  2S 
Atl.  .3. 

2  McFadden  v.  Railway  Co.,  87  Cal.  4G4,  25  Vac.  GSl. 

8  Missouri  Pac.  Ky.  Co.  v.  Whito,  SO  Tex.  2(12,  15  S.  W.  SOS. 

4  Toledo,  St.  L.  &  K.  C.  K.  Co.  v.  Crilti-nden,  42  III.  Aw.  AiY),  cltius. 
City  of  liock  Island  v.  Vanlaudst-licot,.  78  111.  -185. 

(537). 


§  200  CARRIERS  OF  PASSENGERS.  (Ch.  14 

a  team  is  in  tlie  control  of  the  plaintiff's  husband,  a 
want  of  ordinary  care  on  his  part  in  its  management, 
contributing  to  an  injury  to  her,  is  chargeable  to  her, 
and  will  bar  a  recovery  against  a  railroad  company  for 
its  negligence  in  frightening  the  team. 

But  in  most  of  the  states  the  ox)posite  view  prevails. 
Under  the  Missouri  married  woman's  statute,  which 
declares  that  a  marrie<l  woman's  right  of  action  for 
personal  injuries  is  her  sole  and  separate  property,  the 
negligence  of  her  husband  cannot  be  imputed  to  her, 
so  as  to  bar  a  recovery  by  her  for  injuries  sustained 
through  the  concurrent  negligence  of  a  third  person; 
and  it  is  immaterial  that  the  husband  is  joined  with 
her  as  a  co-plaintiff.^  So,  in  Indiana  ®  it  is  held  that 
the  negligence  of  a  husband  in  driving  a  team  can- 
not be  imputed  to  his  wife,  who  is  under  his  control 
and  protection.  Before  his  negligence  would  be  im- 
puted to  her,  it  should  appear  that  he  was  her  agent, 
or  was  so  united  with  her  in  a  common  enterprise  that 
his  act  became  her  act.  In  other  words,  he  must  be 
under  her  control  and  direction.  "In  our  opinion, 
there  would  be  no  more  reason  or  justice  in  a  rule  that 
would,  in  cases  of  this  character,  inflict  upon  a  wife 
the  consequences  of  her  husband's  negligence,  solely 
and  alone  because  of  that  relationship,  than  to  hold 
her  accountable  at  the  bar  of  eternal  justice  for  his 

8  Flori  V,  City  of  St.  Loui.s,  3  Mo.  App.  L'31. 

6  Chicago,  St.  L.  &  P.  R.  Co.  v.  Spilker,  134  lud.  380.  403,  .33  N.  E. 
280,  34  N.  E.  218;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Creek,  130  lud. 
139,  29  N.  E.  481. 

(538) 


•Cil.   14)  NEGLIGENCE    OF    THIRD    PERSONS.  §    20  L 

sins  because  she  was  his  wife."  ^  Tliis  is  tlie  position 
that  has  been  adopt(Ml  by  the  couits  of  hist  resort  in 
l^^ew  York/  Ohio,®  Georgia/''  and  Kansas.^^ 

§  201.      SAME— OF  WIFE  TO  HUSBAND. 

Does  the  wife's  negligence  which  has  contributed, 
with  that  of  a  third  person,  in  bringing  an  injury  upon 
herself,  bar  the  husband's  right  of  action  against  the 
third  person  for  medical  expenses,  loss  of  society  and 
of  services?  It  is  a  little  remarkable  that  there  should 
be  dearth  of  authority  on  this  point,  but  I  have  found 
only  one  case  in  which  the  question  was  raised.  In 
Honey  v.  Railroad  Co.,^  decided  by  the  federal  circuit 
court  in  Iowa,  it  was  held  that  the  wife's  contributory 
negligence  is  not  a  bar  to  the  husband's  right  of  ac- 
tion, in  a  state  the  statutes  of  which  relieve  her  of  all 
common-law  disabilities,  and  him  of  all  responsibility 
for  her  torts.  The  husband's  right  of  action  legally 
and  logically  is  based  upon  the  negligence  of  defend- 
ant, resulting  in  an  invasion  of  his  legal  rights,  and 
not  upon  any  right  of  action  accruing  to  or  derived 
from  the  wife. 

TMoBrlde,  .T.,  ia  Louisville,  N.  A.  &  C.  R.  Co.  v.  Cfcek,  130  Iiiil. 
139,  2tJ  N.  E.  481. 

8  Platz  V.  City  of  Cohoes,  2G  Hun,  .•591.  attirniod  in  89  N.  Y.  219; 
Hoag  V.  Railroad  Co.,  Ill  N.  Y.  199,  18  N.  E.  (>48. 

0  Davis  V.  Guarniori,  4.5  Oliio  St.  470,  15  N.  E.  350. 

10  Atlanta  &  C.  Air-Liue  Ry.  Co.  v.  Gravitt,  93  Ga.  3G9,  3S0.  20  S. 
E.  550.  See,  also,  Sheffield  v.  Telephone  Co.,  36  Fed.  1G4;  Sli.iw  v. 
€raft,  37  Fed.  317. 

11  Reading  Tp.  v.  Telfor  (Kan.  Sup.)  48  I'ac.  134. 
§  201.     1  59  Fed.  423. 

{7M)) 


§    "202  CARRIERS   OF  PASSENGERS.  (Ch.    15 

CHAPTER  XV. 

WHO  AKE  COMMON  CARRIERS. 

g  202.  Common  Can-ier  of  Passengers  Defined. 

203.  Railz'oad  Companies. 

204.  Union-Depot  Companies. 

205.  Sleepinjr-Car  Companies. 

206.  Street-Railroad  Companies. 

207.  Pi'oprietors  of  Road  Vehicles. 

208.  Vessel  Owners. 

209.  Passenger  Elevators. 

§  202.     COMMON  CARRIER  OF  PASSENGERS 

DEFINED. 

A  common  carrier  of  passengers  is  one  who  un- 
dertakes for  hire  to  carry  all  persons,  indiffer- 
ently, -who  may  apply  for  passage.^ 

To  constitute  one  a  common  carrier,  it  is  necessary 
that  he  should  hold  himself  out  to  the  community  as 

§  202.  1  Nashville  &  C.  R.  Co.  v.  Messino,  1  Sneed  (Tenn.)  220.  A 
common  carrier  is  a  person  or  corporation  pursuing  the  public  em- 
ployment of  conveying  goods  or  passengers  for  hire.  Quimby  v.  Rail- 
road Co.,  150  Mass.,  at  page  371,  23  N.  E.  205.  A  common  can'ier 
is  one  whose  usual  business  it  is  to  carry.  Fuller  v.  Railroad  Co.,  21 
Conn.  557.  The  tenn  is  defined  by  statute  in  some  of  the  states. 
"Every  one  who  offers  to  the  public  to  cany  persons  or  property  is 
a  common  carrier  of  whatever  he  thus  offere  to  carry."  Civ.  Code 
Cal.  §  2168;  Civ.  Code  Mont.  1895,  §  2870;  Comp.  Laws  Dali.  1887. 
§  3881.  "One  who  piu'sues  the  business  of  transporting  the  property 
or  persons  of  others  constantly  and  continuously  for  any  period  of 
time  is  a  common  carrier."  Code  Ga.  1882,  §  2066.  Sanb.  &  B. 
Ann.  St.  Wis.  §  3214,  provides  that  every  company  formed  for  the  pur- 
jiose  of  transporting  passengers  or  property  shall  be  deemed  a  com- 
mon carrier. 


Qh.    15)  WHO    ARE    COMMON    CARRIERS.  §    203 

such.      This  may  be  done,  not  only  by  advertisiuo-,  otr., 
but  by  actually  eniiaging  iu  the  business  and  pursuiug 
the  occupation  as  an  employment.'     It  is  not,  however, 
every  carrying  of  passeugers  for  hire  that  constitutes 
a  party  a  common  carrier.      The  test  is  the  occupation 
of  cariTing  all  membei-s  of  the  public  who  uiay  offer 
themselves  for  transportation.     "Common  carriers  are 
such  by  virtue  of  their  occupation,  not  by  virtue  of  tlu- 
responsibilities  under  which  they  act.      Those  respon- 
sibilities may  vary  in  different  countries,  and  at  dif- 
ferent times,  without  changing  the  character  of  the  em- 
ployment.     *      *      *      The   theory    occasionally    an- 
nounced that  a  special  contract  as  to  the  terms  and  re- 
sponsibilities of  carriage  changes  the  nature  of  the 
employment,  is  calculated  to  mislead.     The  resp.)nsi- 
bilities  of  a  common  carrier  may  be  reduced  to  those 
of  an  ordinary  bailee  for  hire,  while  the  nature  of  his 
duties  renders  him  a  couimon  carrier  still."  ' 

^5  203.      RAILROAD  COMPANIES. 

Railroad  companies  are  by  far  the  most  important 
class  of  our  common  carriers  at  the  present  day.  AH 
the  older  methods  of  land  transportation  have  been 
practically  rendered  obsolete  whenever  and  wherever 
they  have  come  into  competition  with  the  railroads. 
Being  incorporated  by  law  for  the  transportation  of 

2  Nashville  &  C.  R.  Co.  v.  Messino,  1  Sneed  (Tenn.)  '220. 

3  New  York  Cent.  R.  Co.  v.  Lockwood.  17  Wall.  :5.->7.  per  Bradley.  .1. 
The  obligations  and  liabilities  of  a  con.nmn  carrier  are  not  dei.end- 
ent  on  eontraet.  though  they  may  be  nioditied  and  limited  by  coulmot. 
Hannibal  &  St.  J.  R.  Co.  V.  Swift,  12  Wall.  262. 

(541) 


§  203  CARRIERS  OF  PASSENGERS.  (Cb.  15- 

persons  and  propert}'  for  hire  over  the  lines  of  their 
respective  roads,  and  being  vested  with  the  power  of 
taking  private  propert}^  for  a  public  use,  railroad  com- 
panies are  common  carriers  of  both  persons  and  prop- 
erty. These  are  the  objects  for  which  they  are  con- 
stituted by  law.  It  is  their  public  employment,  their 
principal  and  direct  business,  and  not  a  casual  or  occa- 
sional occupation  with  them;  and  this  beyond  doubt 
constitutes  them  common  carriers  of  both  descrip- 
tions.^ In  many  states  they  are  declared  to  be  such  by 
statute.^ 

But  a  railroad  company  is  a  common  carrier  of  pas- 
sengers only  by  the  vehicles  which  it  holds  out  to  the 
public  as  designed  for  the  transportation  of  passen- 
gers. It  is  not,  for  example,  a  common  carrier  in  re- 
spect to  its  hand  cars,  unless  it  has  held  itself  out  to 
the  public  as  such,  or  authorized  its  agents  so  to  do.^ 

§  203.  1  Flinn  v.  Railroad  Co.,  1  Houst.  (Del.)  469;  Caldwell  v. 
Railroad  Co.,  89  Ga.  550,  15  S.  E.  678.  One  engaged  in  the  business 
of  transporting  passengei's  for  hire  on  a  railroad  operated  by  him  is 
a  common  carrier.  Davis  v.  Button,  78  Cal.  247,  18  Pac.  133,  and 
20  Pac.  545. 

2  Mills'  Ann.  St.  Colo.  p.  350,  §  494;  Hill's  Code  Or.  §  3254;  Rev. 
St.  Mo.  1889,  §  2G31;  Const.  W.  Va.  art.  11,  §  9;  and  Code  W.  Va.. 
p.  530,  §  71,— declare  railroads  to  be  public  highways,  free  to  all  per- 
sons for  transportation  on  payment  of  regular  charges.  Const.  Mo. 
1875,  art.  12,  §  14,  which  declares  railroads  public  highways,  does  not 
authorize  one  to  I'ide  on  their  ears  without  their  consent  and  without 
payment  of  fare.  Farber  v.  Railway  Co.,  116  Mo.  81,  22  S.  W.  631,, 
citing  Hyde  v.  Railway  Co.,  110  Mo.  272,  19  S.  W.  483. 

■^  Hoar  V.  Railroad  Co..  70  Me.  65.     The  mere  fact  that  a  section 
foreman  invites  a  person  to  ride  with  him  on  a  hand  car  does  not 
impose  on  the  railroad  company  the  responsibility  of  a  common  car- 
rier to  such  pei"son,     A  section  foreman  has  no  right  to  accept  pas- 
(542) 


Ch.    I5j  WHO    ARE    COMMON    CARRIKRS.  §   203 

So,  it  lias  been  said  that  railroad  companies  are  not  to 
be  regarded  as  common  carriers  of  passengers  by  their 
freight  trains,  nnless  they  make  it  an  habitual  busi- 
ness.* So,  railroad  contractors  engaged  in  building  a 
railroad  and  running  a  construction  train  not  adapted 
for  passengers  are  not  common  carriers  as  to  a  person 
who  takes  passage  on  the  train,  and  pays  the  fare,  and 
as  to  him  they  are  bound  to  exercise  onlv  such  care 
and  skill  in  the  management  and  running  of  the  trains 
as  prudent  and  cautious  men,  experienced  in  that  busi- 
ness, are  accustomed  to  use  under  similar  circumstan- 
ces/ So,  a  superintendent  of  construction  and  civil 
engineer  of  a  railroad  has  not  power,  as  such,  to  con- 
vert a  construction  train  into  a  passenger  train,  and 
cannot  open  an  incomplete  road  for  passenger  traffic 
without  the  consent  of  his  superior  officers.^  So,  a 
logging  company  operating  a  logging  railroad  on  its 
own  land,  in  connection  with  its  business,  is  a  private, 
and  not  a  common,  carrier,  even  though  it  permits 
persons  to  ride  gratuitously  on  its  trains;  and  a  con- 
stitutional provision  that  all  railroads  are  public  high- 

sengers  for  transportation,  and  bind  the  company  for  their  safe  car- 
riage, and  every  man  may  be  safely  presumed  to  linow  this  much. 
Id. 

4  Murch  V.  Raih-oad  Corp.,  29  N.  H.  9.  A  company,  though  not  do- 
ing a  general  business  as  a  carrier  of  passengers,  but  which  allows 
passengers  to  ride  on  its  engines,  and  receives  fare,  is  liable  to  a  per- 
son who,  wliile  so  carried,  is  injured  by  a  defect  therein  which  might 
have  been  prevented.  Millwood  Coal  &  Coke  Co.  v.  Madison  (Pa. 
Sup.)  2  Atl.  39. 

6  Shoemaker  v.  Kingsbuiy,  12  Wall.  369. 

»Evansvllle  &  K.  R.  Co.  v.  Barnes,  137  Ind.  :\W>.  P,(>  S.  K.  1<K»J, 

(r.i::) 


:§  203  •  CARRIERS  OF  PASSENGERS.  (Cll.  15 

ways,  and  all  railroad   companies  common  carricis, 
does  not  apply  to  such  a  railroad." 

In  view  of  the  agitation  in  some  quarters  for  tlie 
governmental  ownership  of  railways,  an  interesting- 
question  may  arise  as  to  whether  the  government  can 
be  held  liable  as  a  common  carrier,  independent  of  stat- 
ute. The  negative  has  been  held  by  the  supreme  court 
of  Canada.  "The  establishment  of  government  rail- 
ways in  Canada,  of  which  the  minister  of  canals  and 
railways  has  the  management,  direction,  and  control, 
under  statutory  provisions,  for  the  benefit  and  advan- 
tage of  the  public,  is  a  branch  of  the  public  police,  cre- 
ated by  statute,  for  purposes  of  public  convenience, 
and  not  entered  upon  or  to  be  treated  as  a  private  and 
mercantile  speculation.  The  crown  is  therefore  not 
liable  as  a  common  carrier  for  the  safety  and  security 
of  passengers  using  such  railways;  and  there  can  be 
no  recovery  against  the  crown  for  injury  to  a  passenger 
on  a  government  railway,  though  it  is  in  a  most  un- 
safe state  from  the  rottenness  of  ties,  and  though  the 
safety  of  life  has  been  recklessly-  jeopardized  by  run- 
ning trains  over  it  with  passengers."  ®  But  the  con- 
ductor of  a  government  railway  is  personally  liable  for 
injuries  to  a  passenger  getting  on  board,  caused  by  his 
negligent  starting  of  the  train,  though  the  contract 
of  carriage  is  not  with  him,  but  with  the  crown.®     On 

7  Wade  V.  Lumber  Co.,  20  C.  C.  A.  515,  74  Fed.  517. 

8  Reg.  V.  McLeod,  8  Can.  Sup.  Ct.  1. 

9  Hall  V.  McFadden,  19  N.  B.  Ml,  21  N.  B.  386,  affirmed  by  the 
supreme  court  of  Canada  May  1,  1883.  Cassell's  Dig.  Sup.  Ct.  pp.  723, 
.724. 

(544) 


Ch.    15)  WHO    ARE    COMMON    CARRIERS.  §    204 

the  other  hand,  it  has  been  hehl  in  Australia  that  the 
board  of  land  and  works  of  Victoria,  in  which  is  vested 
the  title  of  the  state  railways  of  that  colony,  is  sub- 
ject to  all  the  ordinary  liabilities  for  negligence  to 
which  any  company  or  body  carrying  on  a  similar  busi- 
ness would,  under  like  circumstances,  be  amenable; 
and  it  is  liable  for  injuries  to  a  person  accompanying 
a  passenger  to  a  station,  occasioned  by  its  neglect  to 
ftirnish  sufficient  lights.^" 

In  this  countiy  it  has  been  held  that  a  railroad  un- 
dertaking the  transportation  of  prisoners  of  war  under 
a  contract  with  the  government  is  not  a  governmental 
agency,  so  as  to  exempt  it  from  liability  for  injuries  to 
a  soldier  on  gtiard,  caused  by  the  negligence  of  its  serv- 
ants/^ 

§  204.     UNION-DEPOT    COMPANIES. 

A  union-depot  company,  at  whose  depot  all  the 
railway  lines  entering  a  city  arrive  and  depart,  is,  as  to 
passengers  at  such  a  depot,  a  common  carrier,  subject 
to  the  same  liability,  within  the  sphere  of  its  opera- 
tions, as  the  railroad  companies  from  whose  shoulders 
it  takes  the  burden.^ 

10  Sweeny  v.  Board  of  Land,  4  Vict.  Law  R.  (I..)  4-10. 

11  Truex  v.  Railway  Ck).,  4  Lans.  (\.  Y.^  198. 

§  2(>4.      1  Indianapolis  Union   Hy.  Co.  v.  Cooper,  6  Ind.   App.   201i. 
33  N.  E.  219. 

v.  1    KKT.CAR.PAS. — 35  (545) 


§'205  CARRIERS   OF   PASSENGERS.  (Ch.    15 

§  205.     SLEEPING-CAR   COMPANIES. 

It  is  sometimes  loosely  said  that  sleeping-car  com- 
panies are  not  common  carriers,  meaning  thereby  to 
convey  the  idea  that  they  are  not  liable  as  insurers  of 
the  passenger's  personal  effects  carried  by  him  into 
the  car.  But,  manifestly,  sleeping-car  companies  are 
common  carriers,  subject  to  all  the  duties  of  common 
carriers,  so  far  as  the  construction  and  maintenance 
of  their  coaches  and  the  personal  safety  and  comfort 
of  their  passengers  are  concerned.  Like  a  railway  com- 
pany, the  sleeping-car  company  exercises  special  priv- 
ileges and  franchises  granted  to  it  by  the  state,  and 
its  business  is  transacted  almost  exclusively  with  the 
traveling  public.  Its  cars  on  the  various  lines  of  road 
are  extensively  advertised  all  over  the  country,  set- 
ting forth,  in  fitting  terms,  the  accommodations  and 
comforts  they  afford,  rates  of  charges,  etc.;  and  the 
public  are  earnestly  invited  to  avail  themselves  of  the 
advantages  and  comforts  they  offer.  In  no  respect, 
therefore,  does  a  sleeping-car  companj^  differ,  in  its  re- 
lation to  the  public,  from  an  ordinary  railway  com- 
pany, in  so  far  as  the  safety  of  its  cars  is  concerned.^ 

But  the  federal  circuit  court  for  Missouri  has  re- 
cently said:  "While  it  is  true  the  owners  of  sleeping 
cars,  as  ordinarily  operated  on  our  railroads,  are  not 

§  205.  1  Nevin  v.  Car  Co.,  106  111.  222,  229.  A  sleeping-car  com- 
panjr  owes  its  passeng-ers  the  duty  of  exercising  a  high  degree  of  care 
for  their  safety.  Pullman's  Palace-Car  Co.  v.  Fielding,  62  111.  App. 
577.  Pub.  St.  N.  H.  1891,  p.  458,  §  10,  declares  all  persons  and  cor- 
porations operating  sleeping  and  parlor  cars  within  the  state  common 
carriers.  See,  also,  post.  §§  .378.  G39. 
(540) 


Ch.    15)  WHO    AKE    COMMON    CARRIERS.  §    200 

to  be  treatecl  as  common  carriers  with  respect  to  their 
liability  to  patrons,  it  is  equally  true,  from  tlie  nature 
and  character  of  their  business,  in  which  they  are 
brought  into  close  and  important  relations,  affecting 
the  comfort  and  safety  of  a  large  portion  of  the  trav- 
eling public,  they  ought  to  be,  and  must  be,  held  re- 
sponsible for  the  discharge  of  certain  general  duties, 
involving  the  exercise  of  ordinary  and  reasonable  cave 
towards  them."  ^ 

§  208.     STREET-RAILROAD    COMPANIES. 

A  street-railroad  company  is  a  common  carrier  of 
passengers,  with  duties  and  responsibilities  entirely 
analogous  to,  and  substantially  the  same  as,  those  of  a 
railroad  company  in  the  carriage  of  passengers.  Both 
are  "railway  companies,"  within  the  usual  meaning  of 
that  term,  and  the  same  general  rules  and  degree  of 
care  must  be  observed  by  each/ 

2  Hughes  V.  Car  Co.,  74  Fed.  499. 

§  200.  1  Citizens'  St.  Ry.  Co.  v.  Twiname,  111  Ind.  587,  13  N.  E. 
55;  Jackson  v.  Railway  Co.,  118  Mo.  199,  224,  24  S.  W.  192;  Smith 
V.  RailAvay  Co.,  32  Minn.  1,  18  N.  AV.  827;  Watson  v.  Railway  Co., 
42  Minn.  46,  43  N.  W.  904;  Pray  v.  Railway  Co.,  44  Neb.  107,  62  N. 
W.  447;  Spellman  v.  Transit  Co.,  30  Neb.  890,  55  N.  W.  270.  A 
street-railway  couii  any,  by  undertakinj;  the  transportation  of  pas- 
sengers for  hire,  assumes  towards  its  patrons  the  relation  of  a  com- 
mon carrier,  without  regard  to  the  cliaracter  of  tlie  easement  pos- 
sessed by  it  in  its  right  of  way.  East  Omaha  St.  R.  Co.  v.  Godola 
(Neb.)  70  N.  W.  491.    See,  also,  ante,  §  18. 

(547) 


^  207  CARRIERS  OF  PASSENGERS.  (Ch.  15 

g  207.  PROPRIETORS  OF  ROAD  VEHICLES. 

Proprietors  of  stage  coaches  carrying  passengers 
for  hire  from  place  to  place  are  common  carriers/  So, 
courts  take  judicial  notice  that  the  owner  of  an  omni- 
bus line  is  a  common  carrier  of  passengers  and  their 
baggage;  and,  if  it  is  otherwise,  he  must  make  it  ap- 
pear.^ So,  a  hackman,  who  transports  persons  from  a 
railroad  depot  to  various  parts  of  the  city  for  hire,  is 
a.common  carrier,^ 

On  the  question  whether  or  not  a  livery  stable  keep- 
er, who  lets  out  his  horses,  carriage,  and  driver  for  a 
specitied  journey,  is  a  common  carrier,  the  authorities 
are  divided.  In  England  it  is  held  that  he  is.  "A 
person  who  lets  out  carriages  is  not,  in  my  opinion, 
responsible  for  all  defects,  discoverable  or  not.  He  is 
not  an  insurer  against  all  defects ;  nor  is  he  bound  to 
take  more  care  than  coach  proprietors  or  railway  com- 
panies who  provide  carriages  for  the  public  to  travel 
in;  but,  in  my  opinion,  he  is  bound  to  take  as  much 
care  as  they;  and,  although  not  an  insurer  against 
all  defects,  he  is  an  insurer  against  all  defects  which 
care  and  skill  can  guard  against.  His  duty  appears 
to  me  to  be  to  supply  a  carriage  as  fit  for  the  purpose 

§  207.  1  See  ante,  §  19.  How.  Ann.  St.  Mich.  §  3G56,  declares 
that  stagecoach  companies  shall  be  common  carriers. 

2  Parmelee  v.  McNulty,  19  111.  550. 

3  Lemon  v.  Chanslor,  68  Mo.  341.  A  street  railroad  whij:h  uses 
hacks  to  convey  passengers  from  the  terminus  of  its  line  to  a  ceme- 
tery is  required,  as  a  common  ean-ier,  to  use  the  utmost  care  and 
skill  to  preserve  the  safety  of  its  passengers.     Bonce  v.  Railway  Co., 

.53  Iowa,  278,  5  X.  W.  177. 
(548) 


Ch.  15)  WHO    ARK    COMMON    CAUKIERS.  §    207 

for  which  it  is  hired  as  care  and  sldll  can  render  it; 
and  if,  Avhile  the  carriage  is  bein-  properly  used  for 
such  purpose,  it  breaks  down,  it  becomes  incumbent 
on  the  person  who  has  let  it  out  to  show  that  the  break- 
down was,  in  the  proper  sense  of  the  word,  an  accident, 
not  preventible  by  any  care  or  skill.     *     *     ♦     Kor 
does  it  appear  to  me  to  be  at  all  unreasonable  to  exart 
such  vigilance  from  a  person  who  makes  it  his  business 
to  let  carriages  for  hire.      As  between  him  and  the- 
hirer,  the  risk  of  defects  in  the  carriage,  so  far  as  care 
and  skill  can  avoid  them,  ought  to  be  thrown  on  the 
owner  of  the  carriage.      The  hirer  trusts  him  to  sup^ 
ply  a  fit  and  proper  carriage.     The  lender  has  it  in  his 
power,  not  only  to  see  that  it  is  in  a  proper  state,  and 
to  keep  it  so,  and  thus  protect  himself  from  i-isk,  bin 
also  to  charge  his  customers  enough  to  cover  this  ex- 
pense." *     A  similar  ruling  has  been  made  by  the  su- 
preme court  of  Vermont,'  and  by  one  of  the  appel- 
late courts  of  Illinois.'     But  a  contrary  view  has  been 
take*a  by  another  appellate  court  of  Illinois,'  and  by 
the  St.  Louis  court  of  appeals.'     Both  of  these  courts 

*  Hyman  v.  Nye  (1881)  6  Q.  B.  Div.  685.     To  same  effect,  see  Jones 
V.  Page,  15  Law  T.  (N.  S.)  619. 

6  Hadley  v.  Cross  (1861)  34  Vt.  586. 

«  TSenner  Llverj-  &  T^ndertaking  Co.  v.  Busson.  5S  111.  App.  17,  citing 
Tullor  V.  Talbot,  23  111.  298:    Krink  v.  Potter.  IT  111.  41(i. 

7  Payne  v.  Hnlstead,  44  111.  App.  97. 

sSiegrist  v.  Arnot,  10  Mo.  App.  197.  In  an  adM.n  against  n  liv 
erj-man  for  injuries  sustained  from  a  defect  in  Che  vehicle,  an  inslnic- 
tion  that  defendants  were  required  to  use  onlinary  care  and  diligence 
in  discharging  their  obligations  to  plaintiff,  inchiding  ordinary  care 
and  skill  in  driving  the  team,  is  as  favorable  to  defendants  as  they 
are  entitled  to  have  it  stated;    and,  though  the  peUtion  allcg.'s  thai 

(r.iU) 


§  209  CARRIERS  OF  PASSENGERS.  (Ch,  15 

lield  that  a  livery  stable  keeper  is  merely  a  private  car- 
rier for  hire,  aud,  as  such,  bound  to  exercise  only  that 
degree  of  care  which  a  prudent  man  experienced  in 
the  business  is  accustomed  to  use  under  similar  cir- 
cumstances; that  is  to  say,  ordinary  skill,  diligence, 
and  ijrudence. 

§  208.     VESSEL  OWNERS. 

Owners  of  vessels  carrying  passengers  for  hire  are 
common  carriers.^     This  includes  ferrymen.^ 

§   209.     PASSENGER  ELEVATORS. 

Proprietors  and  managers  of  passenger  elevators 
are  the  latest  addition  made  by  the  law  to  the  cate- 
gory of  common  carriers.  The  relation  between  the 
owner  and  manager  of  an  elevator  for  passengers  and 
those  carried  in  it  is  similar  to  that  between  an  ordi- 
nary common  carrier  of  passengers  and  those  carried 
by  him.^  The  aged,  the  helpless,  and  the  infirm  are 
daily  using  these  elevators.  The  owners  make  profit 
by  them,  or  use  them  for  the  profit  they  bring.  The 
injury  from  a  careless  use  of  these  elevators  is  likely 
to  fall  on  the  weakest  of  the  community.  All,  includ- 
ing the  strongest,  are  without  the  means  of  self-pro- 

defendants  are  common  carriers,  a  refusal  to  charge  that  defendants 
are  not  common  carriers  is  not  prejudicial.  Erickson  v.  Barber,  83 
Iowa,  367,  49  N.  W.  838. 

§  208.     1  See  post,  c.  — . 

2  Jabine  v.  Midgett.  25  Ark.  474;    May  v.  Hanson,  5  Cal.  3G0;    Mor- 
rissey  v.  Ferry  Co.,  47  Mo.  521;    Smith  v.  SeAvard,  3  Pa.  St.  342. 

§  209.     1  Goodsell  v.  Taylor,  41  Mhiu.  207,  42  N.  W.  873. 
(550) 


Ch.    15)  WHO    ARE    COMMON    CARRIEKS.  §    209 

tection  upon  the  breaking  down  of  the  machinery. 
The  law  therefore  throws  around  such  persons  its  pro 
tection,  by  requiring  the  highest  care*  and  diligence.- 
It  has  been  held  that  the  proprietor  of  an  elevator  must 
exercise  great  care  and  caution  in  the  construction 
and  operation  of  the  elevator,  even  as  to  his  employes; "' 
but  the  true  rule  undoubtedly  is  that,  as  to  em])loyes, 
the  owner  need  exercise  only  ordinary  care  and  pru- 
dence.* 

2  Treadwell  v.  Whittier,  SO  Cal.  578,  22  Pao.  2it('.:  Kentucky  Hotel 
Co.  V.  Camp  (Ky.)  30  S.  W.  1010;  McGrell  v.  Building  Co.,  DO  Hun.  M, 
oZ>  X.  Y.  Supp.  509;  Southern  Building  &  Loan  Ass'u  v.  Lawson 
(Tenn.  Sup.)  37  S.  W.  86. 

3  Wise  V.  Ackerman,  76  Md.  375.  25  Atl.  424. 

*  McDonough  v.  Lanpher,  55  Minn.  501,  57  N.  W.  152. 

(551) 


§  210  CARRIERS  OF  PASSENGERS.  ^^Cll.  16 

i     CHAPTER  XVI. 

WHO  ARE  PASSENGERS. 

§  210.  "Passenger"  Defined. 

211.  Postal  Agents. 

212.  Express  Messengers. 

213.  Porter  on  Sleeping  Car. 

214.  Drover  Accompanying  Stock. 

21.5.  Person  Engaged  in  Business  on  Carrier's  Vehicle. 

216..  Person  Assisting  CaiTier's  Servant. 

217.  Carrier's  Employes. 

218.  Soldiers. 

219.  Slaves. 

220.  Persons  Engaged  in  Illegal  Acts— Sunday  Travel. 

221.  Prepayment  of  Fare. 

222.  Same— Fi'aud  on  Carrier. 

223.  Same— Fraudulent  Use  of  Pass  or  Ticket. 

224.  Person  Riding  in  Dangei'ous  or  Prohibited  Places. 
22.5.  Persons  on  Freight  Trains. 

22G.  Persons  on  Other  Non  Passenger  Cariying  Vehicles. 

227.  Persons  on  Wrong  Train. 

228.  When  Relation  Begins— Persons  at  Station. 

229.  Same— Omnibus  and  Street  Car. 

230.  Same — Persons  Boarding  Moving  Trains  or  Street  Cars. 

231.  When  Relation  Terminates. 

232.  Same— Failure  to  Leave  Train. 

233.  Same— Street  Cars. 

234.  'Same— Passenger  Leaving  Conveyance  at  Intermediate   Sta- 

tion. 

§  210.     "PASSENGER"  DEFINED. 

One  ■who,  with  the  consent,  express  or  implied,  of 
a  common  carrier,  rides  in  a  conveyance  pro- 
vided by  the  carrier  for  the  transportation  of 
passengers,  is  a  passenger  w^hile  so  riding,  and 

(552) 


Ch.   16}  WHO    ARE    PASSENGERS.  §    -U) 

•while  on  the  carrier's  premises  going  to  aid 
from  the  conveyance,  provided  he  is  not  in  tl:e 
carrier's  employment. 

It  is  not  easy  to  construct  a  dL'tiuition  of  the  term 
"passenger"  which,  on  the  one  hand,  will  accurately 
include  all  persons  entitled  to  the  rights  of  passen- 
gers, and,  on  the  other,  exclude  all  those  who  are  not.' 
The  best  that  can  be  done  in  such  a  definition  is  to 
state  broadly  the  essential  elements  on  which  the 
courts  have  insisted  in  deciding  whether  or  not  a  par- 
ticular person  is  a  passenger. 

Laying  out  of  view  for  the  present  the  question  as 
to  when  the  relation  of  carrier  and  passenger  begins 
and  ends,  we  shall  first  inquire  as  to  the  classes  of  per- 
sons entitled  to  the  rights  of  passengers.  In  the  great 
majority  of  cases,  there  can  be  no  question  on  this- 
score,  because  a  person  riding  in  a  passenger  coach 
who  has  prepaid  his  fare  is  necessarily  a  passenger. 
The  cases  which  have  turned  on  the  question  whether 
a  person  is  a  passenger  are  in  reality  exceptional  cases, 

§  210.  1  Not  many  detinitions  of  the  torm  have  been  attempted  bv 
the  courts.  The  following  is  by  the  supreme  court  of  Pennsylvania: 
"In  its  legal  sense,  a  passenger  is  one  who  travels  in  some  public 
conveyance  by  virtue  of  a  contract,  expres.s  or  implied,  with  the  car- 
i-ier,  as  the  payment  of  fare,  or  that  which  is  accepted  »is  equivalent 
therefor."  I'ennsylvania  R.  Co.  v.  Price,  96  Pa.  St.  25G,  2t!7,  quoted  lu. 
Pricker  v.  Railroad  Co.,  132  Pa.  St.  1,  18  Atl.  983.  "It  is  es.«;enlial 
to  constitute  one  a  pas.senger  riding  on  a  train  of  the  can-ier  (ipernt- 
ing  such  ti-ain  that  such  person  should  be  rightfully  on  sucli  train, 
or  should  be  thereon  with  the  knowledge  or  consent  of  the  carrier, 
or  his  agent  in  charge  of  the  train."  Woolsey  v.  Railroad  Co..  3i). 
N'eb.  703,  801,  58  N.  W.  444. 

(55:i) 


§  211  CARRIERS  OF  PASSENGERS.  (^Ch.  16 

and  it  is  to  these  exceptional  cases  that  our  attention 
must  be  turned. 

§  211.     POSTAL  AGENTS. 

A  United  States  postal  agent  riding  on  a  railroad 
train  in  the  discharge  of  his  duties,  under  a  contract 
between  the  government  and  the  company,  occupies 
the  position  of  a  passenger  with  respect  to  the  com- 
pany's liability  for  its  negligence.^  "Essentially  the 
relation  of  carrier  and  passenger  exists  in  every  case  in 

§  211.  ^  Mellor  v.  Railway  Co.,  10.j  Mo.  4.j.j,  16  S.  W.  S19;  Magof- 
fin V.  Railway  Co.,  Uri  Mo.  540,  15  S.  W.  TO;  Libby  v.  RaLroad  Co.. 
S.^  Me.  34,  26  Atl.  943;  Seybolt  v.  Railway  Co.,  95  N.  Y.  562,  affirm- 
ing 31  Hun,  100:  Hammond  v.  Railroad  Co.,  0  S.  C.  130;  Norfolk 
&  W.  R.  Co.  V.  Sbott,  92  Va.  34,  22  S.  E.  811;  Louisville  &  N.  R.  Co. 
V.  Kingman  (Ky.)  35  S.  W.  264;  AiTowsmith  v.  Railroad  Co.,  57  Fed. 
165.  A  railway  company  is  under  a  duty  to  exercise  due  care  and 
skill  in  the  transportation  of  a  postal  official  designated  by  the  post- 
master general,  as  required  by  statute,  to  travel  with  mails  carried 
on  defendant's  road.  The  duty  to  cany  with  reasonable  skill  and 
diligence  does  not  ari.se  out  of  contract,  but  is  imposed  by  law.  Col- 
lett  V.  Railway  Co.  [1851]  16  Q.  B.  9S4.  A  different  rule  obtained  at 
one  time  in  England.  Defendant  had  entered  into  a  contract  with 
the  postmaster  general  to  provide  the  mail  coach  for  the  transporta- 
tion of  the  mail  over  a  certain  route,  and  a  third  person  had  entered 
into  another  contract  with  the  postmaster  general  to  supply  the 
horses  and  coachmen.  One  of  the  coachmen  so  employed  was  in- 
jured while  driving  the  coach,  by  its  breaking  down  from  latent 
defects  in  its  constniction.  Held,  that  defendant  was  not  liable  to 
the  coachman,  because  there  was  no  contract  between  the  two,  de- 
fendant's only  obligation  being  to  the  postmaster  general.  "The  owly 
safe  rule  is  to  confine  the  rig'ht  to  recover  to  those  who  enter  into 
the  contract.  If  we  go  one  step  bej'ond  that,  there  is  no  reason  why 
we  should  not  go  fifty."  Wintei-bottom  v.  Wright,  10  Mees.  &  W. 
109.  It  is  needless  to  add  that  the  principle  of  this  decision  is  repudi- 
ated by  all  th  >  American  cases  on  the  subject. 
(554) 


Ch.    16)  WHO    AKE    PASbENGKRS.  §    211 

which  the  carrier  receives  and  aiii'oes  to  transport  an- 
other not  in  its  employment,  whether  this  be  by  con- 
tract between  them,  or  between  the  carrier  and  some 
other  person  in  whose  ehiployment  tlie  person  to  be 
carried  is,  for  the  purpose  of  transactin<>-  on  the  train 
the  business  of  his  employer.  *  *  ♦  Whether  th<' 
public  carrier  of  passengers  receives  an  ajireed  com- 
pensation for  the  carriage  of  such  persons,  is  compen- 
sated therefor  by  the  charge  for  the  car,  or  for  ti'ans- 
jjortation  of  the  property  of  which  the  person  to  be 
carried  has  charge,  or  receives  no  compensation  what- 
ever for  the  carriage  of  such  person,  is  a  matter  of  no 
importance.  It  is  enough  that  he  is  lawfully  on  the 
car,  and  entitled  to  transportation,  to  give  him  the  char- 
acter of  a  passenger,  and  to  entitle  him  to  recover  for 
an  injury  resulting  from  the  negligence  of  the  carrier 
or  its  servants,  if  this  occurs  without  fault  on  his  own 
part.  If  there  be  necessarily^  more  danger  in  traveling 
in  the  coach  prepared  and  used  for  the  transportation 
of  mail,  even  when  due  care  is  used,  than  in  traveling 
in  the  coaches  prepared  and  used  for  transportation  of 
ordinary  passengers,  then  it  may  be  held  that  a  mail 
agent  assumes  the  risk  of  danger  necessarih*  thus  aris- 
ing from  the  position  of  the  mail  car  in  the  ti'ain,  but 
he  does  not  assume  any  risk  of  danger  that  may  result 
from  the  negligence  of  the  carrier  or  its  servants."  ■ 
{Such  a  postal  agent  is  a  passenger,  not  only  while  in 

2  Gulf,  C.  &  S.  F.  K.  Co.  V.  Wilson,  79  Tex.  371,  15  S.  W,  280. 
Whatever  may  be  the  prei  ise  .«tatu.s  of  a  niiiil  ilcik  <iii  a  railway 
train,  he  is  entitled  to  recover  from  the  company  for  injuries  result - 
ins;  from  its  uegliyeuce.  Iloustou  &  T.  C.  K.  Co.  v.  Hampton.  Gt 
Tex.  427. 

(553) 


§  211  CARRIERS  OF  PASSENGERS.  (Ch.  16 

charge  of  the  mails,  but  also  while  traveling  free  of 
charge  from  the  end  of  his  route  to  Jiis  home;  and  the 
fact  that,  while  so  returning,  he  rides  in  the  postal  car 
to  assist  the  clerk  in  charge  at  the  latter's  request,  does 
not  change  this  relation.^ 

In  Pennsvlyania,  however,  a  statute  *  provides  that 
any  person  injured  while  lawfully  engaged  or  em- 
ployed on  or  about  the  premises  or  cars  of  a  railroad 
company  of  which  he  is  not  an  employe  shall  have 
only  such  rights  against  the  company  as  if  he  were  an 
employ^,  provided  he  is  not  a  passenger.  Under  this 
statute,  it  has  been  held  that  a  postal  clerk  riding  in 
a  mail  car  has  not  the  rights  of  a  passenger,  but  only 
those  of  a  servant  of  the  railroad  company;  that  the 
rule  of  fellow  servants  applies;  and  that,  if  he  is  killed 
by  the  negligence  of  the  train  hands,  there  can  be  no 
recovery.* 

3  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v.  Ketcliam,  133  Ind.  346,  33 
K.  E.  116. 

*  Act  Pa.  April  4,  1868  (P.  L.  p.  58);    2  Brightly's  Purd.  Dig.  p.  1094. 

e  Pennsylvania  R.  Co.  v.  Price,  96  Pa.  St.  256.  On  appeal  to  the 
United  States  supreme  court,  it  was  held  that  Rev.  St.  U.  S.  §  4000, 
which  requh-es  raihoad  companies  to  cany  pei"sons  in  charge  of  tbe 
United  States  mail  on  their  trains,  has  no  effect  on  the  construction 
of  the  state  statute,  and  that  the  decision  of  the  state  supreme  court 
that  the  postal  clerk  has  only  the  rights  of  an  employe  does  not 
raise  a  federal  question,  so  as  to  give  the  United  States  supreme 
court  jurisdiction  of  the  appeal.  Price  v.  Railroad  Co.,  113  U.  S. 
218,  5  Sup.  Ct.  427.  The  syllabus  in  this  case  in  the  oflScial  report 
is  very  misleading,  as  it  represents  the  court  as  holding  that  the  maM 
clerk  is  not  a  passenger. 

(556) 


Ch.    16)  WHO    ARE    PASSENGERS.  §    212 

§  212.     EXPRESS  MESSENGERS. 

An  express  messenger  on  a  train,  ridino-  under  a  con- 
tract between  the  express  company  and  the  railroad 
company,  is  a  passenger,  and  the  location  of  the  express 
car  in  the  train  does  not  deprive  him  of  the  benefit 
of  that  relation/  So,  though  an  express  messenger, 
by  direction  of  the  express  company,  also  acts  as  bag- 
gage agent  for  the  railroad  company,  he  is  not  a  serv- 
ant of  the  railroad  company,  or  a  fellow  servant  with 
a  brakeman  on  the  train,  so  as  to  relieve  the  railroad 
company  from  liability  for  injuries  caused  by  the  neg- 
ligence of  the  brakeman,  where  it  appears  that  his 
wages  were  paid  by  the  express  company,  and  that  it 
alone  could  discharge  him,  either  as  messenger  or  as 
baggage  agent. ^  But  one  who  rides  on  an  express  car, 
at  the  request  of  the  express  messenger,  without  au- 
thority from  the  officers  of  the  express  company,  to 
learn  the  run,  so  that  he  may  temporarily  take  the 
place  of  the  express  messenger,  who  intends  to  take  a 
vacation,  is  not  a  passenger,  nor  entitled  to  the  rights 
of  a  passenger.^ 

§  212.  1  Brewer  v.  Railroad  Co.,  124  X.  Y.  50,  26  N.  E.  324;  For- 
<3yce  V.  Jackson,  56  Ark.  594,  20  S.  W.  528,  597;  Yeouians  v.  Naviga- 
tion Co.,  44  Cal.  71;  Pennsylvania  Co.  v.  Woodworth.  2<)  Ohio  St.  585; 
San  Antonio  &  A.  P.  Ry.  Co.  v.  Adams,  6  Tex.  Civ.  App.  102,  24  S. 
W.  839;    .Jennings  v.  Railway  Co.,  15  Ont.  App.  477. 

-'  Union  Pae.  Ry.  Co.  v.  Kelley,  4  Colo   Api).  325,  35  I'ac.  92.!. 

8  Union  Pac.  Ry.  Co.  v.  Nicliols,  8  Kan.  505. 

(537) 


§  213  CARRIERS  OF  PASSENGERS.  (Ch.  16- 

213.     PORTER  ON  SLEEPING  CAR. 

It  has  been  held  by  the  supreme  court  of  Missouri 
that  a  porter  on  a  Pullman  car,  riding  in  that  car  and 
looking  after  the  welfare  of  passengers  therein,  is  not 
a  servant  of  the  railroad  company,  nor  a  fellow  serv- 
ant of  the  engineer  and  conductor,  though,  by  his  con- 
tract with  the  palace-car  company  and  the  contract 
between  the  latter  and  the  railroad  company,  he  is  sub- 
ject to  the  rules  and  regulations  of  the  railroad  com- 
pany. The  porter  occupies  the  position  of  passenger 
in  respect  to  the  lawful  running  and  management  of 
the  train. ^  On  the  other  hand,  the  court  of  appeals  of 
the  District  of  Columbia  has  held  that  while  a  sleeping- 
car  porter  is  not  a  servant  of  the  railway  company, 
v»  ithin  the  meaning  of  the  fellow-servant  rule,  yet  he 
is  not  a  passenger  in  any  such  sense  as  to  require  of 
the  railroad  company  the  highest  degree  of  care  and 
skill  in  the  construction  and  maintenance  of  its  road- 
way and  machinery,  and  the  operation  of  its  road  and 
the  running  of  its  trains.  Nor  will  the  principle  apply 
that  negligence  is  presumed  prima  facie  from  the  sim- 
ple fact  of  the  occurrence  of  the  accident  and  the 
infliction  of  injury,  imposing  the  onus  upon  the  defend- 
ant of  showing  the  absence  of  negligence.  But  the 
onus  of  proof  is  upon  plaintiff  to  show  affirmatively 
that  the  injury  he  suffered  was  occasioned  by  the  want 
of  the  exercise  of  ordinary,  reasonable  care  by  the  de- 
fendant or  its  servants.^ 

§  213.     1  Jones  v.  Railway  Co.,  125  Mo.  666,  28  S.  W.  883. 
2  Huglison  V.  Railroad  Co.,  2  App.  D.  C.  98.     Under  these  decisions,^ 
(558) 


Ch.    16;  WHO    ARE    PASSKXGERS.  §    214 


§  214.     DROVER  ACCOMPANYING  STOCK. 

A  drover  transported  over  a  raihoail  uu  a  pass  for 
the  purpose  of  takiuj:,  care  of  his  stock  is  not  a  servant 
of  the  railroad  company,  but  a  passenger.^  He  performs 
no  duty  on  the  train,  is  not  connected  in  any  manner 
with  its  management  and  operation,  is  not  subject  to 
the  carrier's  orders  in  tliat  behalf,  and  owes  no  obedi- 
ence, at  least  in  the  sense  in  which  such  duties  common- 
ly exist  between  master  and  servant.^  But  a  stipula- 
tion in  a  bill  of  lading-  that  the  shij^per  designated  in  it 
ma^^  accompany  the  stock  on  the  freight  train,  free  of 
charge,  can  be  availed  of  only  by  him.  Another, 
though  assisting  the  shipper,  and  claiming  an  interest 
in  the  stock,  who,  without  procuring  a  ticket  or  tender- 
ing fare,  also  boards  the  train  with  the  shipper,  iutend- 

a  railroad  comrany  occuiiies  a  very  peculiar  relation  to  these  porters, 
for  they  are  invariably  held  to  be  the  si'rvants  of  the  railroad  com- 
pany in  so  far  as  to  charge  the  company  with  liability  for  their  torts 
to  passengers.    See  post,  §  347. 

§  214.  1  Flinn  v.  Railroad  Co.,  1  Houst.  (Del.)  4G9;  Little  lioek  & 
Ft.  S.  R.  Co.  V.  Miles,  40  Ark.  298;  Ohio  &  M.  R.  Co.  v.  Nic-kless,  71 
Ind.  271;  Receivers  of  International  &  G.  N.  Ry.  Co.  v.  Armstrong, 
4  Tex.  Civ.  App.  14G,  23  S.  W.  236.  A  drover  riding  on  a  freight 
trahi  in  charge  of  stock,  with  the  con.sent  of  the  railroad  company, 
whether  on  a  regular  ticket  or  on  a  drover's  pass,  is  a  passenger; 
and  the  carrier  owes  him  the  same  duty  as  to  other  passengers.  New 
York,  C.  &  St.  L.  R.  Co.  v.  Blumcntlial,  KM)  111.  AO,  43  N.  E.  SOD. 
The  fact  that  a  drover's  pass  contains  a  conditinn  iir.ihiliiiing  mi- 
noi-s  from  riding  thereon  does  not  deprive  a  10  year  old  \>oy  travel- 
ing on  such  a  pa.ss  of  any  of  the  rights  of  a  passenger,  where  the 
conductor  received  him  on  the  train  as  a  passenger,  with  knowledge 
of  the  facts.     Texas  &  P.  R.  Co.  v.  (Jarcia,  02  Tex.  28.^.. 

2  Carroll  v.  Railway  Co.,  S8  Mo.  2:51). 

(55!)) 


§  214  CARRIERS  OF  PASSENGERS.  (Ch.  16 

lug  to  ride  free,  does  not  thereby  become  a  passenger, 
but  is  a  trespasser.^ 

It  has  been  held,  however,  that  a  shipper  of  cattle, 
who,  for  the  purpose  of  enabling  him  to  care  for  his 
stock  in  transit,  receives  a  drover's  pass, is  not,  while  ac 
companying  his  stock,  entitled  to  all  the  rights  and 
privileges  of  an  ordinary  passenger  for  hire;  but  he 
takes  passage  under  the  implied  condition  that  lie  will 
submit  to  whatever  inconveniences  are  necessarily  inci- 
dent to  his  undertaking  to  look  after  the  stock.*  But 
a  condition  in  a  pass  given  to  a  shipper  of  stock  that  he 
shall  be  deemed  an  employ^  of  the  company  while  trav- 
eling with  the  stock,  and  that  the  liability  of  the  com- 
pany to  him  shall  be  that  of  master,  is  ineffectual  to 
deprive  him  of  the  rights  of  a  passenger,  except  as  to 

8  Riclimond  &  D.  R.  Co.  v.  Burused,  70  Miss.  4.37,  12  South.  958. 
So  though  he  intends  to  pay  fare  when  called  upon.  Gardner  v.  New 
Haven  &  N.  Co.,  51  Conn.  143.  A  shipper  of  stock  and  household 
goods  employed  plaintiff  to  accompany  him,  and  take  care  of  the 
property.  Plaintiff  rotle  in  the  box  car  with  the  stock,  and  paid  his 
fare  to  the  conductor.  At  the  end  of  this  conductor's  division,  the 
•car  was  side  tracked,  and  the  next  morning  was  placed  in  another 
train,  in  charge  of  a  different  conductor  and  crew.  Plaintiff  again 
got  into  the  box  car,  without  notifying  any  of  the  train  hands,  and  tr.ey 
locked  the  car  door  in  the  usual  manner,  without  knowledge  of  plain- 
tiff's presence  in  the  car.  Later  the  goods  caught  fire  from  sparks 
fi'om  the  locomotive,  and  plaintiff"  was  burned  before  the  door  was 
•opened.  Held  that,  since  pl;ii..ciff  was  riding  in  a  box  car  without 
the  knowledge  of  the  ti'ain  hands,  the  relation  of  carrier  and  passen- 
ger difl  not  exist,  and  the  fact  that  plaintiff  had  paid  his  fare,  and 
that  the  conductor  of  the  first  train  knew  of  his  riding  in  the  box 
car  on  the  preceding  day,  does  not  alter  the  case.  Jenkins  v.  Kail- 
way  Co.,  41  Wis.  112. 

4  Omaha  &  R.  V.  R.  Co.  v.  Crow,  47  Neb.  84,  66  N.  W.  21. 
(oGOj 


Ch.    IG)  WHO    ARE    PASSENGERS.  §    215 

such  risks  and  inconveniences  as  necessarily  attend  on 
caring-  for  stock.° 

§  215.     PERSON    ENGAGED    IN     BUSINESS    ON    CAR- 
RIER'S VEHICLE. 

As  a  general  rule,  one  who,  with  the  carrier's  con- 
sent, goes  upon  its  trains  or  boats  to  carry  on  a  busi- 
ness ^or  his  own  profit,  is  a  passenger.  Thus,  one  who 
rents  a  room  on  a  steamboat  at  a  stipulated  monthly 
rental,  for  the  purpose  of  selling  liquor  and  cigars, 
and  w^ho  is  entitled  to  his  carriage  and  board  as  part 
of  the  contract,  is  not  an  employ^  of  the  steamboat 
company,  but  a  passenger,  so  far  as  the  company's  lia- 
bility for  injuries  to  him  is  concerned.^  So,  one  who 
agrees  to  pay  a  railroad  company  a  specified  sum  per 
annum,  and  to  supply  passengers  on  one  of  its  trains 
with  iced  water,  for  the  privilege  of  selling  popped  corn 
on  its  trains,  and  for  free  passage  on  its  regular  trains, 
is,  while  traveling  on  the  railroad  under  this  contract, 
a  passenger,  and  not  a  servant  of  the  railroad  com- 
pany.^ 

But  a  dilferent  rule  prevails  when  one  seeks  to  can-y 
on  his  business  in  the  carrier's  vehicles  without  the 

e  Missouri  Pac.  Ry.  Co.  v.  Tietken  (Neb.)  OS  X.  W.  .336. 

§  215.     1  Yeonians  v.  Navijintion  Co..  44  Cal.  71. 

2  Com.  V.  Yeniiont  &  M.  R.  Co.,  108  Mass.  7.  A  newsboy  who. 
■with  the  inipliod  permission  of  a  street-ear  company,  jumps  on  a 
street  car  to  sell  his  papers  to  passengers,  is  not  engaged  or  empl<\ve.l 
about  the  car,  within  the  meaning  of  the  Pennsylvania  slatute  which 
makes  a  person  so  employed  a  fellow  servant  wiiii  the  conductor,  and 
the  company  is  lial)le  for  injuries  sustained  by  the  boy  by  rea.son  of 
the  conductor's  negligence.  Philadelphia  Traction  Co.  v.  Orbann. 
119  Pa.  St.  37,  12  Atl.  816. 

V.  1  FET.CAU.PAS. 36  (•'^''l) 


§  216  •  CARRIERS  OF  PASSENGERS.  '  (Ch.  16 

carrier's  knowledge  and  consent.  Thus,  a  boy  riding 
on  a  train  from  day  to  day,  not  as  a  passenger  or  em- 
plo3^e,  but  by  the  connivance  of  the  conductor,  and  in 
violation  of  the  Ivuown  rules  of  the  company,  in  order 
to  sell  newspapers,  is  a  trespasser  on  the  train,  and  the 
company  owes  him  no  duty  of  care/  So,  a  newsboy 
who  boards  a  street  car  to  sell  papers,  without  objec- 
tion by  the  employes  on  the  car,  is,  at  most,  a  mere 
licensee  or  A^olunteer.  and  not  a  gratuitous  passenger, 
and  must  take  the  car  as  he  finds  it.* 

§  216.     PERSON  ASSISTING  CARRIER'S  SERVANT. 

It  is  generally  held  that  one  who  voluntarily  under- 
takes to  pjrform  service  for  another,  or  to  assist  the 
servants  of  another  in  the  service  of  the  master,  either 
at  the  request  or  without  the  request  of  such  serv- 
ants, who  have  no  authority  to  employ  other  serv- 
ants, is  a  volunteer  or  intermeddler,  to  whom  no  duty 
of  care  is  due.  Thus  one  who  goes  on  a  train  to  assist 
the  brakeman,  at  the  request  of  the  conductor  or  other 
train  hands,  is  a  trespasser,  if  the  conductor  had  no 
express  authority  to  employ  him,  and  there  was  no 
exigenc}'  which  called  for  the  exercise  of  implied  au- 

8  Duff  V.  Railroad  Co.,  91  Pa.  St.  438. 

4  Blackmore  v.  Railway  Co.,  38  U.  C.  Q.  B.  172;  North  Chicago  St. 
Ry.  Co.  V.  Thurston,  43  111.  App.  587.  In  an  action  for  injuries  to  a 
newsboy  while  attempting  to  take  passage  in  an  elevator,  it  is  com- 
petent to  show^  tliat  plaintiff  was  notified  of  the  fact,  prior  to  the 
accident,  that  newsboys  were  not  allowed  in  the  elevator,  and  that 
he  could  not  do  so,  since  in  that  event  he  would  be  a  mere  trespasser. 
Springer  v.  Byram,  137  Ind.  15,  36  X.  E.  3(jl. 
(562) 


Ch.    16)  WHO    ARE    PASSENGERS.  §    216 

tliority.^  So,  one  who  rides  on  a  locomotive  onp;ine 
under  an  agreement  with  the  fireman  that  he  is  to 
shovel  coal  in  consideration  for  his  ride,  bnt  withont 
the  knowledge  of  the  conductor  in  charge  of  the  train, 
is  not  a  passenger,  but  a  trespasser  engaged  in  an  at- 
tempt to  defraud  the  company.^ 

But,  in  the  case  of  a  bona  fide  passenger,  the  fact 
that  he  undertakes  to  assist  the  carrier's  servants  does 
not  necessarily  terminate  the  relation.  Thus,  a  pas- 
senger on  a  street  car,  who,  at  the  driver's  request,  as- 
sists in  pushing  the  car  on  a  side  track,  so  as  to  enable 
another  car  to  pass,  is,  while  so  engaged,  still  a  passen- 
ger, and  is  neither  a  servant  of  the  company  nor  a  tres- 
passer or  volunteer.^  So  the  relation  of  carrier  and 
passenger  is  not  terminated  by  the  fact  that  the  pas- 
senger alights  from  the  train,  and  aids  the  carrier's 
servants  in  identifying  and  removing  his  baggage,  nor 
does  the  act  of  so  doing  make  him  a  servant  of  the  car- 
rier.* 

§  216.  1  Railroad  Co.  t.  Dial.  58  Ark.  318,  24  S.  W.  500;  Cooper 
V.  Kallroad  Co.,  136  Ind.  360,  36  N.  E.  272;  Everhart  v.  Railroad  Co.. 
78  Ind.  202. 

2  Wool.-<ey  V.  Railroad  Co.,  39  Neb.  798,  58  N.  W.  444. 

3  Street  Ry.  Co.  v.  Bolton,  43  Ohio  St.  224,  1  N.  E.  333.  But  it  lia.« 
been  held  that  one  who  voluntarily  undei-takes  to  perform  a  .service 
while  on  a  train  that  he  is  under  no  obligation  to  perform,  although 
undertaken  at  the  reque.st  of  the  foreman  of  the  train  gang,  becomes 
a  fellow  servant  with  the  engineer  and  fireman,  and,  if  injured  by 
their  negligence,  cannot  recover.  Texas  &  N.  0.  Ry.  Co.  v.  Skinner, 
4  Tex.  Civ.  App.  661,  23  S.  W.  1001. 

4  Ormond  v.  Hayes,  60  Tex.  180. 

(5G3) 


§    217  CARRIERS   OF  PASSENGERS.  (Ch.   16 


§  217.     CARRIER'S  EMPLOYES. 

Some  conflict  of  authority  exists  on  the  question 
whetlier  an  employe  of  tlie  carrier,  wliile  being  carried 
to  and  from  his  work,  is  to  be  regarded  as  a  passenger 
or  as  a  servant.  The  decided  weight  of  authority, 
however,  is  in  favor  of  the  proposition  that  an  employe 
of  a  railroad  company,  Avho  travels  back  and  forth  from 
his  home  to  the  place  where  his  services  are  rendered, 
on  the  cars  of  the  company,  free  of  charge,  as  stipulated 
for  in  the  contract  of  employment,  is  a  servant  of  the 
company,  and  not  a  passenger,  while  so  traveling,  and 
for  an  injury  to  him  through  the  negligence  of  a  co-em- 
ploy6  the  company  is  not  liable/     So,  the  traveling  au- 

§  217.  1  Vick  V.  Kailroad  Co.,  95  N.  Y.  2G7;  Russell  v.  Railroad  Co., 
17  N.  Y.  134;  Ciilmau  v.  Railroad  Co.,  10  Allen  (Mass.)  23:>;  Gillshau- 
non  V.  Railroad  Co..  10  Cush.  (Mar,s.)  228;  Moss  v.  Johnson,  22  111. 
G33;  Tuuney  v.  Railway  Co..  L.  R.  1  C.  l\  291.  A  painter  employed 
by  a  railroad  company  to  paint  depots,  bridges,  tracks,  and  switches 
along  the  line  of  the  road  is  an  employe,  and  not  a  passenger,  while 
being  transported  over  the  road  to  discharge  the  duties  of  his  em- 
ployment. McQueen  v.  Railroad  Co.,  30  Kan.  G89,  1  Pac.  139.  A 
locomotive  engineer,  riding  free  on  a  freight  train  from  his,  home  to 
the  end  of  a  division  to  take  charge  of  his  engine,  is  not  a  passenger. 
but  an  empioy§.  Kansas  Pac.  Ry.  Co.  v.  Salmon,  11  Kan.  83.  A 
sectionman  of  a  street-railway  company,  whose  custom  is  to  furuis'A 
such  employes  transportation  to  and  from  their  work,  is  not  a  mere 
trespasser  while  riding  on  one  of  its.  cars  by  order  of  his  foreman, 
but  is  lawfully  on  the  car,  though  not  a  passenger.  Denver  &  B. 
P.  Rapid-Ti-ansit  Co.  v.  Dwyer,  20  Colo.  132.  36  Pac.  1106.  A  rail- 
road employe,  hired  by  the  month,  was  directed  to  go  to  a  certain 
station,  and  there  take  charge  of  a  gravel  train  the  next  day.  In- 
stead of  stopping  at  the  point  designated,  he  passed  it,  and  stopped 
overnight  at  his  home.— a  station  beyond.  On  returning  the  next 
morning,  he  was  injured  by  the  negligence  of  the  train  hands.  HeW 
(564) 


Ch.    16)  WHO    ARE    PASSKNGERS.  §    -17 

ditor  of  a  railroad  company,  whose  duties  ai-e  to  travel 
on  the  company's  cars  from  station  to  station  on  its 
road,  and  audit  accounts,  is,  while  so  traveling,  a  serv- 
ant of  the  company,  and  not  a  passenger.-  So,  one  who 
travels  on  a  railroad  train  on  a  free  ticket  issued  to  him 
as  an  agent  of  the  company  is  not  a  passenger,  but  an 
emplo}'^  of  the  company,  and  the  principle  governing 
the  master's  liability  for  injuries  caused  by  the  negli- 
gence of  a  fellow  servant  applies  to  him.^  So,  an  em- 
ploy^ who  uses  an  elevator  in  the  employer's  building, 
while  going  to  and  from  her  work,  is  still  a  servant, 
and  not  a  passenger,  and  the  employer  is  bound  to  use 
only  ordinary  care  for  her  safety.*  So,  a  laundress, 
while  being  conveyed,  either  gratuitously  or  as  part  of 
the  contract  of  employment,  from  her  house  to  that  of 
her  employer,  in  his  wagon,  is  a  fellow  servant  of  the 
coachman,  and  cannot  recover  for  an  injury  caused  by 

that,  while  so  traveling,  he  was  a  servant  of  the  railroad  company, 
and  not  a  passenger,  and  hence  the  railroad  companj'  is  not  liable  for 
the  negligence  of  his  co-servants.  Manville  v.  Railroad  Co.,  11  Ohio 
St.  417. 

2  Minty  v.  Railroad  Co.,  2  Idaho,  4::58,  21  Pac.  («0. 

8  Central  R.  Co.  v.  Hendcr.son,  ()9  Ga.  715,  reafiirmed  in  Henderson 
V.  Railroad,  73  Ga.  71S.  In  an  earlier  case,  however,  it  was  held 
that  a  workman,  employed  as  a  tracli  laborer  on  a  railroad,  is  to  l)c 
regarded,  not  as  an  employ^,  but  as  a  itasseuger,  while  being  carrio.I 
on  a  train  from  tlic  place  of  his  worli  to  wliore  he  stays  at  night. 
Atlanta  «&  R.  Air-Line  Ry.  Co,  v.  Ayers,  53  Ga.  12.  This  decision 
was  influenced  by  several  provisions  of  the  Georgia  Code.  Section 
2083  renders  railroad  companies  liable  for  injuries  to  servants  caused 
by  the  negligence  of  fellow  servants;  section  :«):U!  bars  a  recovery  by 
an  employe  guilty  of  negligence;  but  section  3034  permits  a  recovery 
by  a  passenger  guilty  of  negligence. 

*  McDonough  v.  Lanpher,  55  Minn.  501,  57  N.  W.  152. 

(505) 


§  217  CARRIERS  OF  PASSENGERS.  (Ch.  16 

his  negligence."  Tlie  fact  that  the  conductor  of  a  train 
receives  and  treats  a  person  riding  therein  as  a  passen- 
ger does  not  make  him  a  passenger,  if  in  fact  he  is  a 
servant  of  the  company." 

In  Pennsylvania  and  Indiana,  however,  a  different 
rule  prevails,  and  it  is  held  in  these  states  that  an  em- 
ploy^ of  a  railroad  company  is  a  passenger  while  be- 
ing carried  to  and  from  his  wort,^  especially  where  he 
hires  out  at  a  less  price  per  day  than  if  he  had  been  re- 
quired to  pay  fare.^  It  has  also  been  held  that  a  rail- 
road company  which  invites  a  station  agent  on  board 
of  its  pay  train  to  receive  his  wages  must  exercise  the 
same  degree  of  care  and  diligence  for  his  safety,  while 
on  or  leaving  its  train,  as  if  he  were  a  passenger.*  So, 
it  has  been  held  that  a  detective,  employed  by  a  rail- 
road company  to  ferret  out  thefts  from  its  cars,  is  to 
be  regarded  as  a  passenger,  rather  than  as  an  employe, 
while  being  carried  from  station  to  station  in  connec- 
tion with  his  business.^" 

It  is  agreed  on  all  hands,  however,  that  an  employe 
of  a  railroad  company,  entitled  to  ride  free,  whether  in 
the  service  of  the  company  or  on  his  own  private  busi- 

B  McGuirk  v.  Shattnck,  160  Mass.  45,  35  N.  E.  110. 
8  Texas  &  P.  Ry.  Co.  v.  Scott,  64  Tex.  549. 

T  Gillenwater  v.  Railroad  Co.,  5  Ind.  339;  Fitzpatrick  v.  Railroad 
Co.,  7  Ind.  436. 

8  O'Donnell  v.  Railroad  Co.,  59  Pa.  St.  239,  50  Pa.  St.  490.  In 
Downey  v.  Railway  Co.,  28  W.  Va.  732,  an  employe  of  a  railroad 
company,  transported  to  its  machine  shops  on  a  work  train,  with  other 
emploj'gs,  in  consideration  of  his  employment,  was  treated  as  a  pas- 
senger without  discussing  the  question. 

9  Louisville  &  N.  R.  Co.  v.  Stacker,  86  Tenn.  343,  6  S.  W.  737. 

10  Pool  V.  Railway  Co.,  53  Wis.  657,  11  N.  W.  15. 
(5G(i) 


Ch.   16)  WHO    ARE    PASSENGERS.  §    217 

ness  or  pleasure,  is  a  passenger,  and  not  a  servant, 
while  so  traveling  on  his  own  private  business,  when 
his  time  is  his  own.^^  Thus,  a  brakeman  who  has  been 
released  from  duty  on  a  Raturdav  night,  and  who,  with 
the  conductor's  permission,  undertakes  a  journey  on 
that  day  to  visit  his  family  at  the  other  end  of  his 
"run,"  is  not  an  employe  of  the  company  while  so  trav- 
eling, but  a  passenger,  and  hence  the  company  is  liable 
for  injuries  sustained  by  him  thro\igh  the  negligence  of 
its  servants.^- 

It  has  also  been  held  that  an  employ^  of  a  railroad 
contractor,  transported  on  a  train  furnished  by  the 
railroad  company  to  carry  the  contractor's  employee 

11  Dojie  V.  Railroad  Co.,  102  Mass.  6G,  37  N.  E.  770;    McUaiiiel  v.' 
Railroad  Co.,  90  Ala,  64,  8  South.  41. 

12  state  V.  Western  Md.  R.  Co.,  («  Md.  4."«.  In  this  ca.se,  the  ciurt, 
after  reviewing  the  cases,  says:  "In  whatever  else  they  may  ditftT, 
these  cases  all  agree  upon  one  principle,  and  that  is  that  if  the  plain- 
tiff is  not  at  the  time  of  the  accident  engaged  in  the  actual  service 
of  the  company,  or  in  some  way  connected  witli  such  service,  the 
company  is  liable  for  the  negligence  of  its  employes."  A  day  yard 
master,  after  being  relieved  from  duty  at  (5  p.  m.,  took  a  passuniger 
car  and  engine  to  give  himself  and  fellow  servants  a  free  ride  to  and 
from  a  public  meeting,  without  notice  or  permission  from  any  officer 
who  had  authority  to  permit  the  pas.^age  of  .such  a  train.  Held,  that 
such  act  not  having  been  done  in  the  course  of  his  employment,  but 
for  his  own  ends  exclusively,  and  without  real  or  apparent  authority 
to  carry  passengers  for  the  company,  the  company  was  not  liable  a.s 
to  a  passenger  for  injury  to  one  on  the  train.  Chicago,  St.  r.,  M.  & 
O.  Ry.  Co.  V.  Bryant,  13  C.  C.  A.  249,  03  Fed.  909.  On  a  prior  ai)- 
peal  in  this  case,  it  wa.s  held  to  be  a  question  of  fact  for  the  J  my 
whether  employes  of  a  railroad  company,  carried  free  of  charge,  un  a 
special  train,  from  its  shops  to  a  depot,  two  miles  away,  for  the  pur- 
pose of  attending  a  public  meeting,  are  passei-gcrs  In  going  .■md  ic 
turning.  Bryant  v.  Railway  Co.,  4  C.  C.  A.  14(!.  r.3  Fed.  HUT.  Uiii 
see,  contra,  Davis  v.  Railroad  Co.,  4o  Fed.  .'43. 

(•">IH) 


§  218  CARRIERS  OF  PASSENGERS.  (Ch.  16 

from  their  place  of  residence  to  their  worl^',  and  back 
again,  and  operated  by  the  servants  of  the  railroad 
company,  is  a  passenger  lawfully  on  the  train,  and  not 
a  fellow  servant  with  the  train  hands. ^* 

§  218.     SOLDIERS. 

A  soldier  in  the  regular  army,  transported  on  a  spe- 
cial train,  under  a  contract  with  the  railroad  company 
and  the  federal  government,  is  a  passenger  while  being 
so  transported,  so  far  as  the  company's  duty  to  exercise 
care  for  his  safety  is  concerned,  though  it  merely  fur- 
nishes the  motive  power  and  the  crew  to  operate  the 
train. ^  But  a  soldier  who  is  being  transported  by  ves- 
sel under  such  a  contract  is  not  a  passenger,  even  after 
his  discharge  from  the  service  during  the  voyage,  in 
such  a  sense  as  to  render  the  master  of  the  vessel  lia- 
ble for  his  ill  treatment  by  the  commanding  officer  of 

13  Torpy  V.  Railway  Co.,  20  U.  C.  Q.  B.  446.  But  where  a  car  fur- 
nished by  a  railroad  company  for  the  transportation  of  its  own  em- 
ployes is  also  used,  as  matter  of  convenience,  by  a  contractor  and  his 
employes  in  going  to  and  from  their  Avork,  an  employe  of  the  con- 
tractor cannot  be  regarded  as  a  passenger,  though  the  company  ac- 
quiesced in  such  use  of  the  car.  He  is  a  licensee,  to  whom  the  com- 
pany is  responsible  only  for  wanton  and  intentional  injury.  Mc- 
Cauley  v.  Railroad  Co.,  93  Ala.  35G,  9  South.  Gil.  A  laborer  in  the 
employ  of  a  lumber  company,  engaged  in  loading  and  unloading  cars 
hauled  by  a  railroad  company,  is  not  to  be  deemed  a  trespasser  in 
riding  on  a  train  made  up  of  such,  cars,  with  the  consent  or  permis- 
sion of  the  conductor,  and  hence  he  is  not  debarred  from  recovering 
for  an  injury  inflicted  by  the  negligence  of  the  i-ailrcad  company  while 
so  riding.     Gradin  v.  Raihvay  Co.,  30  Minn.  217,  14  N.  W.  SSI. 

§  218.    1  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  I'arsley.  6  Tex.  Civ.  Apix 
150,  25  S.  W.  64;  Truex  v.  Railway  Co.,  4  Lans.  (N.  Y.)  19S. 


Ch.    16)  WHO    ARE    PASSENGERS.  §219- 

the  troops;  ^  nor  is  he  a  passeniior  Avithin  th<*  iiicjm- 
iujj,  of  the  rule  Avhich  denies  conipeusalion  lo  passen- 
gers for  salvage  services.^ 

g  219.     SLAVES. 

In  the  days  of  slavery,  a  question  arose  whether  a 
common  carrier's  liability  in  the  transportation  of 
slaves  was  that  of  an  insurer,  as  in  the  case  of  other 
property,  or  whether  he  was  liable  only  for  negligence, 
as  in  the  case  of  passengers.  It  was  uniformly  held 
that  slaves,  in  this  respect,  were  to  be  treated  as  pas- 
sengers, and  not  as  property.^  "A  slave's  transporta- 
tion, by  land  or  water,  is  not  paid  for  either  by  weight 
or  measurement.  He  is  not  stowed  away  as  goods. 
He  eats  and  sleeps  and  has  loconu)tion,  and  must  be 
provided  for  accordingly.  These  attributes,  however, 
do  not  elevate  him  above  the  brute,  which  stands  in  a 
stall  or  secured  in  a  cage.  He  has,  however,  reason. 
In  this  respect,  however  degraded  his  caste,  he  is  far 
elevated  above  the  brute  creation;  and,  as  a  man,  he 
is  to  be  carried  and  treated  far  differently  from  goods 
or  brutes.  He  is  therefore  paid  and  cared  for  as  a  pas- 
senger, and  it  is  in  this  character  that  the  carrier's  lia- 
bilitv  is  assumed  and  is  to  be  enforced."^ 

2  White  T.  McDononuh,  3  Sawy.  311,  Fed.  Cas.  No.  \7J>')2. 

8  The  Morriniac,  1  Ben.  201,  Fed.  Cas.  No.  !),473. 

§  219.  1  Boyce  v.  Anderson,  2  Pet.  150;  Clark  v.  >[eDoniild  (1827t 
4  McCord  (S.  C.)  223;  Folse  v.  Transportation  Co.,  19  La.  Ann.  !(«»; 
Mitchell  V.  Railroad,  30  Ga.  22. 

■■:  McCk'n:if,'lian  v.  Brock,  5  Ri<-li.  Law  (S.  C.)  17,  citing'  Sill  v.  Knll- 
road  Co.,  4  Kicli.  Law  (S.  C.)  ir»4. 


§  220  CARRIERS  OF  PASSENGERS.  (Ch.  It) 

§  220.     PERSONS  ENGAGED  IN  ILLEGAL  ACTS— SUN- 
DAY TRAVEL. 

It  is  now  well  settled  that  a  carrier,  bj  its  accept- 
ance of  a  passenger  as  a  passenger,  comes  under  an 
obligation  to  take  due  and  reasonable  care  for  his 
safety,  which  obligation  arises  by  implication  of  law, 
and  independent  of  contract,  so  that  it  may  exist 
though  the  contract  of  carriage  is  illegal,  or  though 
there  is  no  express  contract  of  carriage.^  Hence  the 
fact  that  a  contract  of  carriage  is  entered  into  on  Sun- 
day, and  that  plaintiff,  when  injured,  was  traveling  on 
Sunday,  in  violation  of  a  statute,  does  not  preclude  him 
from  maintaining  an  action  against  the  carrier  for  the 
injuries.-  In  the  language  of  the  New  York  court  of 
appeals,  "it  is  certainly  a  startling  proposition  that 
the  thousands  and  tens  of  thousands  of  persons  who 
travel  on  business  or  for  pleasure  on  Sunday,  upon 
railroads  and  steam  and  ferry  boats  in  this  state,  are 
at  the  mercy  of  incompetent  or  careless  engineers  and 
servants,  and  that  there  is  no  remedy  for  loss  of  life  or 
limb  resulting  from  this  negligence."  ^ 

§  220.  1  New  York.  L.  E.  &  W.  R.  Co.  v.  Ball,  53  N.  J.  Law,  28:',. 
21  Atl.  1052. 

2  DelaAvare,  L.  &  W.  R.  Co.  v.  Trautwein,  52  N.  J.  Law,  169,  19 
Atl.  178;  Knowlton  v.  Railway  Co.,  59  Wis.  278,  18  N.  W.  17;  Opsahl 
V.  Judd,  .30  Minu.  12G,  14  N.  W.  575;  The  D.  S.  Gregory,  2  Ben.  226, 
Fed.  Cas.  No.  4,100.  The  provision  of  the  statute  (Revision  N.  J.  p. 
1227)  prohibiting  Sunday  travel,  which  renders  it  lawful  for  railroad 
companies  to  i*un  one  passenger  train  over  their  roads  each  way  on 
Sunday,  makes  it  lawful  for  persons  to  travel  on  those  trains.  Smith 
V.  Railroad  Co.,  46  N.  J.  Law,  7. 

3  Carroll  v.  Railroad  Co.,  58  N.  Y.  126,  aftirmiug  65  Barb.  (N.  Y.)  32. 

(570) 


Ch.    16)  WHO    ARE    PASSENGERS.  §    220 

In  Massachusetts,  however,  it  was  at  one  time  held 
that  a  passenger  traveling  on  Sunday,  not  from  neces- 
sity or  charity,  in  violation  of  statute,  rannot  recover 
for  injuries  caused  by  the  carrier's  negligence  while  so 
traveling.*  But  the  statute  ^  which  prohibits  travel- 
ing on  the  Lord's  day,  except  from  necessity  or  char- 
ity, has  been  amended  so  as  to  provide  that  "this  sec- 
tion shall  not  constitute  a  defense  to  an  action  against 
a  common  carrier  of  passengers  for  a  tort  or  injury  suf- 
fered by  the  person  while  so  traveling."  ®     So,  in  Con- 

*  Stanton  v.  Railroad  Co.,  14  Allen  (Mass.)  485.  But  one  who  travels 
on  Sunday  to  visit  a  sick  friend  is  traveling  for  "charity,"  within  the 
meaning  of  the  Lord's  day  act  (Gen.  St.  Mass.  c.  84,  §§  1,  2),  which 
prohibits  traveling  on  that  day,  "except  from  necessity  or  charity." 
Doyle  V.  Railroad  Co.,  118  Mass.  195,  So,  the  facts  that  the  exercises 
of  a  Spiritualist  camp  meeting  included  a  show  to  which  an  admit- 
tance fee  was  charged,  and  that  some  of  the  speakers  declared  that 
they  would  throw  away  the  Bible  in  their  search  after  truth,  are  not 
conclusive  that  a  person  who  traveled  on  the  Lord's  day  to  attend  tlie 
meeting  did  so  unlawfully;  but  the  question  whether  she  did  so  from 
necessity  or  charity,  within  the  exception  of  the  act,  is  for  the  jury. 
Feital  v.  Railroad  Co.,  109  Mass.  398.  In  Bucher  v.  Railroad  Co., 
125  U.  S.  555,  8  Sup.  Ct.  974,  it  was  held  that  the  decisions  of  the 
supreme  judicial  court  of  Massachusetts  that  the  statute  prohibiting 
Sunday  travel,  except  in  cases  of  necessity  or  charity,  will  preclude 
a  person  from  recovering  against  a  railroad  company  for  injuries  sus- 
tained through  the  negligence  of  its  servants,  while  traveling  in  viola- 
tion of  this  statute,  are  binding  oq  the  federal  courts;  and,  thongli 
such  a  construction  is  believed  to  be  wrong  by  the  federal  supreme 
court,  yet  a  person  injured  in  Massachusetts  while  traveling  on  the 
Lord's  day  cannot  recover  in  the  federal  courts. 

6  Pub.  St.  Mass.  c.  98*  §  3. 

6  McDonough  v.  Railroad  Co.,  137  Mass.  210.  Tr.iv.'liii«  on  Sun- 
day is  no  defense  to  the  carrier  for  personal  injuries,  slm  e  llie  statut.' 
expressly  excludes  tliat  defense.  Jordan  v.  Railway  Co.,  105  Mas.s. 
340,  43  N.  E.  111. 

(571) 


§  220  CARRIERS  OP  PASSENGERS.  (Ch.  16 

necticut,  the  statutes,  since  1883,  do  not  prohibit  Sun- 
day travel;  and  an  action  lies  against  a  street-railroad 
company  for  negligence  resulting  in  an  injury  to  a  pas- 
senger riding  for  pleasure  on  a  Sunday,  though  Gen. 
St.  Conn.  §  15G9,  still  prohibits  any  person  from  en- 
gaging in  "any  sport  or  recreation  on  Sunday,  between 
sunrise  and  sunset."  ^ 

So,  it  has  been  held  that  the  fact  that  a  free  pass  was 
given  in  viohition  of  law  does  not  make  the  person  rid- 
ing thereon  a  trespasser,  or  destroy  his  right,  as  a  pas- 
senger, to  recover  for  injuries  caused  by  the  carrier's 
negligence.* 

In  some  of  l.lie  Southern  states,  however,  during  re- 
construction days,  it  was  held  that  one  engaged  in 
the  Confederate  military  service,  injured  by  the  car- 
rier's negligence  while  traveling  from  place  to  place, 
could  not  recover  against  the  carrier,  on  the  ground 
that  he  was  engaged  in  an  illegal  act,  to  wit,  rebellion 
against  the  United  States.®  The  judges  composing 
these  courts  were  probably  a  great  deal  stronger  as 
patriots  than  as  lawyers,  and  these  decisions  are  so  ob- 
viously unsound  as  to  require  but  little  comment. 
Whatever  the  passenger's  purpose  may  be  on  arriving 
at  his  destination,  the  act  of  traveling  is  certainly  not 

7  Horton  v.  Tramway  Co.,  G6  Conn.  272,  33  Atl.  914. 

8  Buffalo,  P.  &  W.  R.  Co.  v.  O'Hara,  3  Penny.  (Pa.)  190. 

9  Martin  v.  Wallace,  40  Ga.  52;  Wallac-e  v.  Cannon.  38  Ga.  199; 
Muscogee  R.  Co.  v.  Redd,  54. Ga.  33,  48  Ga.  102;  Turner  v.  Railroad 
Co.,  63  N.  C.  522.  In  this  last  case  it  was  said:  "The  act  of  goi-ng 
to  the  field  of  operations  was  illegal,  and  the  contract  of  the  defendant 
to  aid  him  by  carrying  him  to  the  field  was  an  illegal  contract;  and, 
upon  the  supposition  that  both  parties  were  rebels,— the  most  favor- 
able one  for  the  plaintiffs,— there  can  be  no  recovery  upon  it." 

(572) 


Ch.    16)  WHO    ARK    PASSEXGKRS.  §    221 

illogal.  And  even  if  it  were,  under  the  principle  of 
the  "Sunday  cases,"  it  cannot  be  considered  as  the 
proximate  cause  of  his  injuries,  which  are  directly  at- 
tributable to  the  negligence  of  the  carrier. 

§  221.     PREPAYMENT  OF  FARE. 

The  purchase  of  a  ticket  or  the  prepayment  of  fare 
is  not  necessary  to  constitute  the  relation  of  passenger 
and  carrier.  Taking  a  seat  in  a  vehicle  provided  by 
the  passenger  for  the  transportation  of  passengers, 
with  the  intention  of  paying  fare  on  demand,  is  all  that 
is  necessary.^  Common  carriers  have  the  right  to  de- 
mand of  passengers,  applying  for  transportation,  pre- 
payment of  fare;  but,  in  the  absence  of  such  demand, 
the  failure  to  pay  fare  does  not  release  the  carrier  from 
his  obligation  to  the  passenger.  In  such  a  case  it  is 
presumed  that  the  carrier  relies  on  the  integrity  and 
responsibility  of  the  passenger,  or  on  its  lieu  on  his 
baggage.^     So,  one  who  procures  a  ticket  at  a  station 

§  221.  1  Cbattanoosa.  R.  &  C.  R.  Co.  v.  Hn.ir;rins.  S(t  Ca.  4!>4.  15  S. 
E.  848;  Florida  Soutli.  Ry.  Co.  v.  Hirst.  30  I'la.  1.  11  South.  r.iHi; 
Cleveland,  C,  C.  &  St.  L.  R.  Co.  v.  Best,  68  111.  Api).  r..H2:  Stoiior  v. 
Pennsylvania  Co.,  98  lud.  o84;  Xorfolk  &  \\'.  K.  I'o.  v.  ( ; losedose's 
Adm'r,  88  Va.  207,  i:{  S.  E.  454;  Houston  &  T.  C.  R.  Co.  v.  Washinj,'- 
ton  (Tex.  (^iv.  Api).)  :;0  S.  W.  719. 

2  Hurt  V.  Railroad  Co.,  40  Miss.  .391.  A  contract  is  iuii)lii'il.  win-re 
one  takes  passage  with  a  common  carrier,  that  he  shall  pay  a  reason- 
;ihl('  price  or  reward  for  being  carried,  .-ind  that  llu'  carrier  shall 
exercise  due  care,  diligence,  and  skill  in  trai'simrting  him  safely  and 
siieedily  to  the  journey's  end;  and  it  is  not  nt'ccssary  to  pnivc  an 
express  contract  or  the  actual  payment  of  the  reward.  I'rink  v. 
Schroyer.  IS  111.  410.  When  a  person  is  on  a  train  as  a  passenger, 
tlif  only  inquiry  is  whether  he  is  lawfully  tlicre,  and  iKjt   wln'lln-r  he 


§  221  CARRIERS  OF  PASSENGERS.  (Ch.  16' 

on  his  promise  to  pay  the  agent  therefor  on  his  return, 
there  not  being  time  before  the  starting  of  the  train, 
and  who  thereafter  makes  such  payment,  is  to  be  treat- 
ed as  a  passenger  while  on  the  train. ^  So,  the  mere 
fact  that  a  person  riding  on  a  regular  passenger  train 
leaves  his  car  without  surrendering  his  ticket  or  pay- 
ing his  fare,  not  having  had  an  opportunity  so  to  do, 
does  not  establish,  as  matter  of  law,  that  he  is  not  a 
passenger,  and  not  entitled  to  protection  as  such,  on 
leaving  the  car;  since  it  cannot  be  assumed  that  he 
intended  to  evade  payment  of  fare,  or  left  the  car  for 
that  purpose.*  So,  one  who  gets  on  a  street  car  for 
the  purpose  of  becoming  a  passenger,  expecting  and 
willing  to  pay  fare,  is  a  passenger,  though  the  con- 
ductor, owing  to  the  crowded  condition  of  the  car, 
mav  fail  to  collect  fare  from  him.°  So,  one  who  enters 
on  a  passenger  steamboat,  in  good  faith,  to  take  pas- 
sage thereon,  is  there  in  the  relation  and  character  of 
a  passenger;  and  the  owner  of  the  boat  owes  to  him 
the  duty  of  a  carrier  of  passengers,  although  no  fare 

has  been  paid.*' 

• 

had  paid  his  money  for  the  privilege.  Ohio  «&  M.  R.  Co.  v.  Muhling, 
30  111.  9. 

3  Ellsworth  V.  Railway  Co.  (Iowa)  63  N.  W.  .".84. 

4  McKimble  v.  Railroad,  189  Mass.  542,  2  N.  E.  97.  The  wife  of  a 
railroad  employe,  tiaveling,  without  a  ticket  and  without  a  pass,  to- 
the  point  where  her  husband  is  at  work,  is  not  a  trespasser,  so  as  to 
be  withdrawn  from  the  protection  of  the  law  applicable  to  pa.'^sengers. 
althouLh,  before  she  boarded  the  train,  the  conductor  stated  to  her 
that  he  could  not  take  her  without  a  pass,  but  that  she  was  entitled 
to  one.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Sneed,  4  Tex.  Civ.  App.  31, 
23  S.  W.  277. 

5  Cogswell  V.  Railway  Co..  5  Wash.  46,  31  Pac.  411. 

6  Cleveland  v.  Steamboat  Co.,  68  N.  Y.  306,  reversing  5  Hun,  523.. 

(574) 


Ch.    16)  WHO    ARE    PASSENGERS.  §    222 

It  is  also  entirely  immaterial  from  what  source  the 
carrier  is  compensated, — whether  by  the  jiassen^er  or 
by  some  one  else.  This  fact  has  clearly  app:  aretl  in  the 
preceding  sections,  touchinu  the  carrier's  diiiies  to 
postal  clerks,  express  agents,  etc.  So,  where  a  society 
hires  a  special  train  from  a  railway  company  for  the 
purpose  of  an  excursion,  one  who  buys  a  ticket  i'vom 
the  treasurer  of  the  society  is  a  passenger,  and  the  rail- 
way company  is  bound  to  use  due  care  in  his  transpor- 
tation/ 

§  222.     SAME— FRAUD  ON  CARRIER. 

A  very  different  rule,  however,  obtains  when  it  ap- 
pears that  a  person  is  fraudulenth'  seeking  to  evade  the 
payment  of  fare.  "The  rule  is  well  settled  that  when 
one  gets  on  a  passenger  train,  with  the  deliberate  pur- 

Where  a  10  year  old  child  pays  her  fare  one  way  in  getting  on  a 
ferryboat,  and  does  not  leave  the  boat  at  all.  the  failure  to  demand 
or  pay  fare  on  the  retiu'n  does  not  preclude  a  recovery  for  injuries 
sustained  on  the  return  trip  by  reason  of  the  negligence  of  the  ferry 
company's  employes.  Doran  v.  Ferry  Co.,  3  Lans.  (N.  Y.)  10").  Thj 
failure  of  a  passenger  on  a  ferryboat  to  pay  fare  does  not  relieve 
the  carrier  from  liability  for  injuries  during  the  trip,  since  she  may 
have  intended  to  paj',  and  may  have  had  no  proper  demand  made  on 
her.  Bartlett  v.  Transportation  Co.  (Super.  N.  Y.)  8  N.  Y.  Supp.  309. 
affirmed  130  N.  Y.  659,  29  N.  E.  1033.  One  who,  after  boarding  a 
steamer,  learns  that  a  certain  landing  where  he  intends  to  stop  is  off 
the  steamer's  route,  and  that  he  must  pay  extra  fare  in  order  to  .s-top 
there,  and  who  declines  to  do  so,  but  does  not  change  his  purpose  of 
taking  passage,  is  a  passenger  from  the  time  he  goes  on  board,  and. 
as  such,  can  hold  the  steamer  responsible  for  negligence  whereliy  he 
is  injured,  though  he  does  not  prepay  his  fare  or  purchase  a  tii-ket; 
it  being  the  cu.stoni  for  the  purser  to  collect  fares  ou  lio.-ii-d.  The 
Wasco,  53  Fed.  540. 
7  Skinner  v.  Railway  Ck).,  5  Exch.  7S7. 

(57-)) 


§    2'22  CARRIERS   OF   PASSENGERS.  (Ch.    16 

pose  not  to  pay  fare,  and  adheres  to  that  purpose,  or 
if,  being  on  the  train,  and  having  money  with  which 
he  conki  pay  his  fare,  he  falsely  and  fraudulently  rep- 
resents to  the  conductor  that  he  is  w^ithout  the  means 
to  pay  his  fare,  and,  by  means  of  such  fraudulent  rep- 
resentations, induces  the  conductor  to  permit  him  to 
remain  on  the  train  without  payment  of  fare,  the  rela- 
tion of  carrier  and  passenger,  and  the  obligations  re- 
sulting from  that  relation,  are  thereby  not  established 
between  him  and  the  company,  and  the  company  owes 
him  no  other  duty  than  not  to  willfully  or  recklessly 
injure  him.  *  *  *  The  law  will  do  nothing  to  stim- 
ulate fraud  and  dishonesty,  and  that  would  be  the 
effect  of  holding  that  a  railroad  company  owed  to  one 
riding  on  the  train,  under  the  conditions  named,  the 
duties  and  obligations  it  owes  to  a  jMissenger  who  has 
honestly  paid  his  fare.  Railroad  companies  are  as 
much  entitled  to  protection  against  fraud  as  natural 
persons.  It  is  a  matter  of  common  knowledge,  of 
which  the  court  will  take  judicial  notice,  and  of  which 
the  public  are  bound  to  take  notice,  that  railroad  pas- 
senger trains  are  operated  to  carry  passengers  for  hire. 
They  are  not  eleemosynary^  agencies.  It  is  equally 
well  known  that  the  authority  of  a  railroad  conductor 
•does  not  extehd  to  the  carrying  of  passejigers  without 
the  payment  of  the  regular  fare.  But,  if  he  had  such 
authority,  his  assent  obtained  by  the  fraudulent  means 
mentioned  would  confer  no  rights.  One  riding  on  a 
train  by  fraud  or  stealth,  without  the  payment  of  fare, 
takes  upon  himself  all  tlie  risks  of  the  ride;  and  if 
injured  by  an  accident  happening  to  the  train,  not  due 
(57G) 


Ch.    16)  WHO    ARE    PASSENGERS.  §    -'-2 

to  recklessness  or  willfulness  on  Llu'  pai-t  of  tlie  com- 
pany, lie  cannot  recover."  ^  So,  one  who  clandestinely 
enters  a  locomotive  --or  a  freight  car,^  to  beat  his  way 
over  the  road,  is  a  trespasser,  and  the  only  duty  the 
company  owes  him  is  not  to  wantonly  injure  him.  The 
same  rule  applies  to  one  who  pays  a  brakeman,  for  his 
own  personal  use,  a  sum  less  than  the  regular  fare,  tor 
permission  to  ride  in  a  freight  car.*     So,  where  a  per- 

§  222.    1  Caldwell,  J.,  in  Condian  v.  Railway  Co.,  14  C.  C.  A.  50(5. 
67  Fed.  522.     To  the  same  effect,  see  North  Birmingham  Ry.  Co.  v. 
Liddicoat,  99  Ala.  545,  13  South.   IS;    McVeety  v.  Railway  Co.,  45 
Minn.  2G8,  47  N.  W.  809;    Toledo,  \V.  &  W' .  Ry.  Co.  v.  Brooks.  81  111. 
245.     The  fact  that  a  person  furnishes  the  conductor  with  liquor,  in 
order  to  get  his  consent  to  ride  on  a  freight  train  which  he  knows 
does  not  carry  passengers,  gives  him  no  rights  as  a  passenger.    Hoehu 
V.  Railroad  Co.,  .52  111.  App.  662.     One  who  rides  on  a  mixed  pas- 
senger and  freight  train,  without  payment  of  fare,  by  the  invitation 
and  permission  of  the  conductor,  is  uot  a  passenger.     Conductors  and 
employes  in  charge  of  a  train  are  not  clothed  with  authority  to  invite 
persons  to  take  passage  with  them  as  their  guests,  and  especially  is 
this  true  of  conductors  and  employes  of  freight  trains.     Nor  does  the 
fact  that  plaintiff  was   rendering  .services   on  defendant's  train   as 
brakeman,  with  the  acquiescence,   knowledge,  consent,   and  permis- 
sion of  the  conductor,  render  him  a  servant  of  defendant,  so  as  to  en- 
title him  to  recover  damages  as  such  for  injuries  caused  by  defend- 
ant's negligence.     Stalcup  v.  Railway  Co.  (Ind.  App.)  45  N.  E.  8o:i. 
But  the  fact  that  a  mother  does  not  take  a  ticket  for  her  child,  three 
years  and  two  months  old,  traveling  with  her,  does  not  prevent  the 
child  from  recovering  for  injuries  sustained   in  an  accident  on  the 
journey,  though  a  statute  requires  all  children  over  three  years  old 
to  pay  half  fare,  there  being  no  intention  on  the  part  of  the  mother 
to  defraud  the  company.     Austin  v.  Railway  Co.,  L.  R.  2  Q.  B.  4  12. 
2  Chicago  &  A.  R.  Co.  v.  Michie,  83  111.  427. 

sHendryx  v.  Railroad  Co.,  45  Kan.  377,  25  Pao.  893;    St.  L<.uis.  I. 
M.  &  S.  Ry.  Co.  V.  Ledbitter,  45  Ark.  240;   I'lanz  v.  Railroad  Co..  157 
Mass.  .377,  32  N.  E.  :i56. 
4  Janny  v.  Railway  Co.,  63  Minn.  380,  05  \.  W.  45.);    M.Namara  v. 

V.  1  FET.  CAR.  PAS.  — 37  ( O  M  ) 


§  223  CARRIERS  OF  PASSENGERS.  (Ch.  1& 

son,  without  the  knowledge  of  tlie  conductor,  gets  into 
the  caboose  of  a  freight  train,  after  his  application  for 
permission  to  ride  iias  been  denied  by  the  conductor, 
the  fact  that  the  conductor,  from  motives  of  humanity, 
does  not  eject  him  in  the  niglittime,  after  discovering 
his  presence  in  the  caboose,  does  not  constitute  him  a 
passenger,  so  as  to  render  the  company  liable  for  his 
death  in  an  accident  caused  by  a  defect  in  the  car.'"^ 
And  one  who  enters  a  stagecoach,  and  declines  to  pay 
fare  when  requested,  and  who  is  notified  to  leave  the 
coach,  but  who  continues  therein,  with  a  threat  that 
he  will  resist  expulsion,  is  a  trespasser,  and  not  a  pas- 
senger, and  the  carrier  is  not  liable  for  injuries  caused 
by  its  negligence." 

§  223.     SAME— FRAUDULENT     USE     OF    PASS    OR 

TICKET. 

One  who  fraudulently  attempts  to  ride  on  a  non- 
transferable pass  or  commutation  ticket  issued  to  an- 
other is  not  a  passenger  to  whom  the  carrier  owes  the 
duty  to  carry  safely.^  This  rule  is  founded  on  sound 
principle,  since  it  is  a  fundamental  doctrine  of  law 
that  one  who  is  guilty  of  a  fraud  cannot  enforce  any 

Railway  Co.,  Gl  Minn.  29G,  G3  N.  W.  72G;  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Johnson,  3  Ok\.  41.  41  Pac.  641.  One  who  bribes  a  freight 
brakeman  to  permit  liim  to  ride  among  the  freight  in  the  freight  car 
is  not  a  passenger,  but  a  trespasser.  Brevig  v.  Railway  Co.,  G4  Minn, 
1G8,  66  N.  W\  401. 

5  Atchison,  T.  &  S.  F.  R.  Co.  v.  Headland,  18  Colo.  477,  33  Pac.  185. 

6  Higley  v.  (Kilmer,  3  Mont.  90. 

§  223.      1  Louisville,  N.  A.  &  C.  Ry.  Co.  v,  Thompson,  107  Ind.  442, 
8  N.  E.  18,  and  9  N.  E.  3.57;    ^Vay  v.  Railway  Co.,  64  Iowa,  48,  19  N. 
W.  828;    Handley  v.  Railroad  Co.  (Tex.)  2  Posey,  Unrep.  Cas.  282. 
(578) 


CI  J.    16)  WHO    ARE    PASSENCiEKS.  §    .  2"/. 

rights  arising'  out  of  bis  own  wroni;.       Tt  is  nlsd  in 
close  agreement  Avitli  tlie  rule  that  a  caii-irr  owrs  im 
<lut,v  of  care  towards   nn   intruder.-       I'lit    if  a    pas- 
senger, in  good  faitli,  <iii(l  williout  ;il1('iii]»t  to  concear 
his  identity,  present  for  his  passage   a    nontransfer- 
able commutation  ticket  issued  to  another,   ;ind   his 
claim  is  recognized,  and  he  is  carried  as  a  ])assenger, 
he  is  entitled  to  the  right  of  a  passenger  to  be  carried 
safely,  and  to  have  a  safe  place  to  alight  and  leave  tlu- 
road.^     So,  the  mere  fact  that  a  nontransferabk^  pass- 
issued  to  another  person  is  found  on  the  body  of  a 
dead  passenger  after  an  accident  does  not  raise  a  con 
elusive  presumption  that  the  dead  man  was  wrong- 
fully using  the  pass,  and  I'enee  not  a  passenger.      The 
carrier  should  produce  some  evidence  that  the  jkiss 
was  being  fraudulently  used,  since  the  presumption  al 
ways  is  in  favor  of  honesty  and  fair  dealing,  and  lie  wliu 
asserts  the  contrary  must  prove  it.* 

2  Louisville.  N.  A.  &  C.  Ky.  Co.  v.  Thompson.  ](i7  Iiid.  44-2,  8  N.  E. 
18.  and  9  X.  E.  S.")?. 

3  Robostelli  v.  Railroad  Co.,  33  Fed.  796.  A  railway  comiiany  was- 
in  the  habit  of  issuing  gratviitous  tickets  to  the  reixtrters  of  a  I.ontlini 
newspaper  when  going  to  report  certain  country  races.  The  tickets 
were  nontransferable.  Plaintiff,  a  reporter,  actintr  bona  fiilc,  and 
going  on  the  business  of  his  journal,  wont  to  the  station  wiili  such 
a  ticket.  His  name,  however,  was  not  upon  it.  but  ihai  of  anntluM- 
reporter  in  the  same  department  wiili  himself.  Wiiile  on  ilio  journey, 
plaintiff  was  injured,  and  the  company  sought  to  evade  liability,  on 


4  Louisville,  N.  A.  &  C.  R.V.  Co.  v.  lliomp.son.  inT  In.l.  \\'2,  S  N.  E. 
18,  and  9  X.  E.  .T)?.  The  mere  fact  tliai  a  iierson  n.niKMl  "Itiic"  is 
traveling  on  a  pass  issued  to  "Price"  does  not  wair.-mi  ilie  fourt  In 
declaring,  as  a  matter  of  law,  that  .she  was  practicing  a  fraud  on  tlie. 
comiiany,  l»ut  the  question  is  for  the  jury.  Rice  v.  Kailroa.l  fo.,  '2'1 
111.  App.  u43. 

(r,7!)) 


§  224  CARRIERS  OF  PASSENGERS.  (Cll.  IG 


§  224.     PERSON    RIDING    IN    DANGEROUS    OR    PRO- 
HIBITED PLACE. 

A  passenger  on  a  train  or  boat  designed  for  the  trans- 
portation of  passengers  does  not  lose  his  character  as 
such  by  negligently  assuming  a  dangerous  position. 
He  may  thereby,  in  case  of  injury,  subject  himself  to 
the  imputation  of  contributory  negligence,  barring  a 
recover}'  for  th(^  injur}-  produced  b}-  the  negligence  of 
the  carrier,  but  he  is  a  passenger  still.^     Thus,  a  pas- 

the  ground  that  lae  was  not  lawfully  on  the  train.  Hekl,  that  evi- 
dence that  otlier  reportei's  had,  on  several  owasions  before,  traveled 
with  .similar  tickets  not  bearing  the  names  of  those  who  used  them, 
and  that  the  persons  whose  names  were  on  the  tickets  were  person- 
ally known  to  some  of  the  officers  and  servants  at  the  station,  was 
sufficient  to  take  the  question  to  tlie  .lury.  Great  Northern  Ky.  Co. 
T.  Harrison,  10  Exch.  375. 

§  224.  1  Brown  v.  Scarboro.  97  Ala.  31G.  12  South.  289.  The  su- 
preme court  of  the  United  States  has  said:  "The  fact  that  a  passen- 
ger occupies  a  position  on  a  vehicle  which  he  is  not  entitled  to  under 
the  contract  of  carriage  does  not  dissolve  the  relation  of  passenger 
and  carrier.  Such  violation  only  gives  the  carrier  tlie  right  to  com- 
pel him  to  conform  to  the  regulation,  or,  upon  his  refusing  to  do  so, 
to  require  him  to  leave  the  boat,  using,  in  either  case,  only  such  force 
as  the  circumstances  reasonably  justified.  If  tlie  injuries  necessarily 
arose  froan  the  violation  of  the  regulation,  tlie  cairier  woiild  not  be 
responsible  therefor.  But  if  they  were  not  the  necessary  result  of 
his  being,  at  the  time,  on  a  part  of  the  boat  where  he  had  no  right 
to  be,  and  were  directly  caused  by  the  improper  conduct  of  the  car- 
rier's servants,  either  while  acting  within  the  scope  of  their  general 
emplojTtnent,  or  when  in  the  discharge  of  special  duties  imposed  on 
them,  he  is  not  precluded  from  claiming  the  benefit  of  safe  transpor- 
tation." New  Jei-sey  Steamboat  Co.  v.  Brockett,  121  U.  S.  ()37,  7  Sup. 
Ct.  1039,  affirming  18  Fed.  15G.  As  to  contributory  negligence  in  rid- 
ing in  dangerous  or  prohibited  places,  see  ante,  g§  107-177. 
(580) 


Ch.    IG)  WHO    ARE    TASSEXGERS.  §    22-i 

.seni;er  who  goes  into  the  baj^uajie  oompartinciit  of  a 
coiiibination  smoking-  and  baggage  car  docs  not  be- 
come a  trespasser,  but  remains  a  passenger,  i hough  a 
rule  of  the  (•oni])an_v  forbids  ]»ass<Migers  fi'oni  riding  in 
the  baggage  compartment,  where  it  a])])cars  that  tlie 
smoking  compartment  was  tilled  \\  ith  passengers,  that 
plaintiff  was  not  aAvare  of  the  rule,  and  that  defend 
ant's  emploj'CS  had  repeatedly  permitted  plaintiff  and 
other  passengers  to  rido  in  the  baggage  comi)artnient.- 
So,  one  who,  hohling  a  pass  good  for  trai)s])ortation 
over  a  railroad,  boards  the  baggage  car  of  a  moving 
train,  and,  finding  the  car  door  locked,  rides  on  the  plat- 
form of  the  car,  is  a  passenger.'  So,  where  a  freight 
car  is  attached  to  a  passenger  train,  with  the  agree- 
ment that  the  owner  of  the  freight  is  to  oi)L'rate  the 
brakes  thereon,  and  run  all  risks,  the  owner  is  entitknl 
to  the  rights  of  a  passenger,  so  far  as  injury  to  him  is 
concerned,  though  there  is  a  regulation  of  the  company 
against  runiiing  freight  with  passenger  cars.'     So,  the 

2  New  York,  L.  E.  &  ^V.  R.  Co.  v.  Ball,  58  N.  J.  Law,  283.  21  Atl. 
1052.  The  fact  tbat  a  soldier  on  a  special  train,  transported  under  a 
contract  between  t]ie  company  and  the  federal  povernnuMii.  i.s  de- 
tailed to  ride  in  the  baggajre  car,  to  take  charge  of  bafr>ra;;e  and  ra- 
tions being  transpoi-ted  on  liie  train,  does  not  cliangc  liis  relatiun  of 
passenger.  (Jalveston,  H.  ^  S.  A.  Uy.  Co.  v.  I'arsley.  (J  Tc.x.  Civ. 
App.  150,  25  S.  W.  64. 

3  Illinois  Cent.  R.  Co.  v.  O'Kccfc.  C.:?  111.  App.  Kcj. 

4  Lackawanna  &  B.  R.  Co.  v.  Chcnewitii.  52  Pa.  St.  .SS2.  A  cattle 
drover,  whose  cattle  wen'  l)ein;;  transpdrlcd  on  a  ir.-iiii  cciiiiaininK 
notJiing  but  box  cars,  I'ode  on  liic  engine,  willi  ilic  consent  of  tho 
company's  employes,  and  was  injured  liy  the  dei-.-iiliiieiit  of  Die  en- 
gine. Held  that,  though  tlie  comiiaiiy's  rule  forbade  persons  riding 
on  the  engine,  yet  the  comi)any  was  lial»U'  if  tlie  ilrover  was  ignoraul 

(581) 


■§    224  CARRIERS   OF   PASSENGERS.  (Ch.    16 

fact  tliat  a  person,  after  paying  his  fare,  rides  on  the 
steps  on  the  front  platform  of  a  street  car  does  not 
sever  the  relation  of  passenger  and  carrier,  and  he  does 
not  thereby  forfeit  his  right  to  exact  the  same  care  of 
tiie  carrier  that  he  would  haye  been  entitled  to  exact 
if  he  had  taken  his  place  inside  the  car.^ 

A  different  principle,  however,  applies  when  one 
takes  an  exjiosed  position  on  a  train,  with  or  without 
the  knowledge  or  consent  of  the  carrier's  servants,  for 
the  purpose  of  obtaining  a  gratuitous  ride.  In  such  a 
case  he  is  committing  a  fraud  on  the  carrier,  and  will 
be  treated  as  a  trespasser,  and  not  as  a  passenger.® 
Thus,  a  brakeman  who  has  been  off  duty  for  several 
days,  and  who  gets  on  the  baggage  car  of  a  passenger 
train  on  a  journey  for  his  own  private  ends,  and  who 
pays  no  fare,  is  not  a  passenger,  where  he  knows  that 
the  rules  of  the  company  forbid  persons  from  riding 
in  the  baggage  car.'  So,  one  ^\  ho  rides,  witliout  the 
Jinowledge  of  tlie  railway  comi>any's  employes,  in  a 
car  devoted  to  the  railway  mail  service,^  or  who  rides 
on  the  front  platform  of  the  express  car,''  or  on  the  loco- 

of  the  rule,  and  if  the  company  had  by  its  conduct  held  out  its  em- 
ployes as  authorized  to  cons;ent  to  the  canying  of  drovers  on  the  en- 
gine.    Waterbury  v.  Railroad  Co.,  17  Fed.  671. 

5  Willmott  V.  Railway  Co.,  lOG  Mo.  53.3,  17  S.  W.  490. 

«  See  ante,  §  222. 

'  Higgins  V.  Railroad  Co.,  36  :slo.  418. 

«  Bricker  v.  Railroad  Co..  132  Pa.  St.  1,  18  Atl.  983.   ' 

»  Ohio  &  M.  Ry.  Co.  v.  Allender,  59  111.  App.  620.  One  so  riding 
does  not  become  a  passenger  by  paying  to  the  brakeman  the  fare 
demanded.  Chicago  &  E.  R.  Co.  v.  Field,  7  Ind.  App.  172,  34  N.  E. 
406. 

(582) 


Oh.    16)  WHO    ARE    PASSKNGERS.  §    225 

motive,"'  or  on  the  footboard  of  the  cnoiiu'/'  with  the 
knoM'ledge  or  at  tlie  invitation  of  the  (*n«;iiUH*r,  or  even 
of  the  condnctor,  is  not  a  passc^nger,  l)iit  a  trespasser, 
if  his  pnrpose  is  to  obtain  a  gratnitons  ride. 

§  225.  PERSONS  ON  FREIGHT  TRAINS. 

As  to  the  statns  of  a  person  ridiniz:  on  a  freight  train, 
there  is  some  conflict  in  the  authorities.  In  consid- 
ering the  subject,  it  Avill  be  convenient  to  take  up — 
First,  the  cases  where  it  appears  tliat  a  railroad  com- 
pany has  made  a  complete  separation  between  its  par 
senger  and  freight  business;  and,  second,  cases  where 
it  appears  that  the  company  permits  passengers  to 
ride  on  some  of  its  freight  trains,  and  prohibits  them 
from  doing  so  on  others. 

There  can  be  no  question  tliat  railroad  companies 
have  the  right  to  make  a  com])lete  separation  between 
tlieir  freight  and  passenger  business.  When  such  a 
separation  has  been  made,  the  conductor  of  a  freight 
train  has  no  power,  real  or  ap])arent,  to  accej)!  i»as- 
sengers  on  freight  trains,  and  his  consent  to  a  jxm-- 
son's  riding  on  his  train  will  not  make  that  person  a 

loAirginia  M.  R.  Co.  v.  Roach,  83  Va.'  37.1.  5  S.  E.  17.":  Robertson 
V.  Railroad  Co.,  22  Barb.  (X.  Y.)  01.  One  who  artciiiins  to  get  into 
the  cab  of  a  locomotive  enjilne  attached  to  a  freight  train  on  a  rail- 
road used  exclusively  for  freight,  to  ride  for  hi.s  own  convenience, 
by  invitation  of  the  conductor  of  tlie  train,  docs  noi  :ni|iiirc  ilie 
rights  of  a  pa.ssenger,  even  if  lie  inis  i)rcvioiisIy  ridilen  ni  liie  loco- 
motive by  a  similar  invitation,  and  has  seen  tlie  .servants  of  tlie  corpo- 
ration do  so.      Files  V.  Raihoad  Co..  14!)  Mass.  204,  21   X.  K.  :U1. 

11  Wilcox  V.  Railway  Co.  (Tt'X.  Civ.  App.)  33  S.  W.  37'.»;  Harklcy  v. 
Railway  Co.,  37  111.  Apii.  2'J3. 

(5S3) 


§  225  CARRIERS  OF  PASSENGERS.  (Ch.  16 

passenger,  or  render  his  presence  on  the  train  law- 
ful, so  as  to  make  the  company  liable  for  injuries 
caused  by  negligence/  But  although  a  railwaj^  com- 
pany may  not  authorize  the  carriage  of  passengers 
on  its  freight  trains,  or  may  prohibit  it,  yet  if  its  serv- 
ants carr}'  passengers  on  such  trains  to  the  knowk'dge 
of  the  company's  officers,  authorized  to  make  and  en- 
force rules,  or  if  it  is  carried  to  such  an  extent  that 
such  officers,  in  a  proper  discharge  of  duty,  should  know 
the  facts,  and  no  effort  is  made  to  stop  it,  then  a  pas- 
senger is  authorized  to  presume  that  it  is  permitted 
by  the  company,  and  will  be  protected  as  a  passenger 
on  such  trains.  But  it  cannot  be  said  that  a  disobedi- 
ence of  orders  can  annul  an  order,  except  upon  the 
principle  that  the  officers,  knowing  of  the  violation, 
ratif}'  it.  Whatever  falls  short  of  this  will  not  serve 
to  confer  authority  upon  or  enlarge  the  powers  of  the 
agent.^  In  some  cases,  however,  it  is  held  that,  even 
though  the  rules  of  a  railroad  company  prohibit  the 
ti'ansportation  of  passengers  on  freight  trains,  yet  on(^ 

§  225.  1  Eaton  v.  Railroad  Co..  57  X.  Y.  3S2:  Powers  v.  Railroad 
Co.,  153  Mass.  188,  26  N.  E.  440;  San  Antonio  &  A.  P.  Ry.  Co.  v. 
Lynch,  8  Tex.  Civ.  App.  513,  28  S.  W.  252;  St.  Louis  S.  W.  Ry.  Co. 
V.  White  (Tex.  Civ.  App.)  34  S.  W.  1042.  A  brakeman  employed  on 
a  freight  train  in  charge  of  a  conductor  has  no  implied  authority  to 
bind  the  ccmipany  by  a  contract  of  passage,  and  his  permission  ro 
a  person  to  ride  does  not  make  such  person  a  passenger.  Canditf  v. 
Railway  Co.,  42  La.  Ann.  477.  7  South.  601. 

2  Texas  &  P.  Ry.  Co.  v.  Black,  87  Tex.  160,  27  S.  W.  118;  Burke 
V.  Railway  Co.,  51  ]Mo.  App.  491.  The  testimony  of  freight  con- 
ductors on  a  railroad  that  they  had,  contrary  to  rule,  themselves  rid- 
den on  freight  trains  without  a  pass,  and  had  permitted  former  em- 
ployes of  the  I'ailroad  to  so  ride,  is,  in  the  absence  of  knowledge 
thereof  on  the  part  of  the  otticers  of  the  company,  insufficient  to 
(584) 


Ch.    1  '•)  .  WHO    ARE    PASSENGERS.  §    22-> 

who  enters  the  caboose  attached  to  siuh  a  train,  ami 
remains  in  it  with  the  knowledge  of  the  condnclor, 
and  pa^'S  the  nsiuil  (are,  is  entitled  to  protection  as  a 
])assenger,  nnless  i1  is  shown  that  he  had  hnowledge  (if 
the  rnle.^ 

Where,  however,  a  railroad  company  has  n(lo]>t('(l 
the  system  of  carrying  passengei*s  on  some  <»l  its 
freight  trains, — the  usual  system  in  the  Western 
states,  at  least, — one  who  goes  on  a  freight  train  in 
good  faith,  supposing  it  to  be  also  a  train  for  carrying 
passengers,  is  entitled  to  all  the  rights  and  remedies 
of  a  passenger  as  against  tlie  company,  thongh  the  con- 
ductor of  that  particular  train  is  i^rohibited  from  cai 
rying  passengers.*     These  decisions  rest  on  the  prim-: 

establish  a  custom  wliicli  vaU  entitle  au  ex-eniploy6  so  riding:  to  the 
riiflits  of  a  passenger.     Powers  v.  Kailroad,  153  Mass.  188,  26  N.  E. 

446. 

3  Dunn  V.  Railway  Co.,  58  :Me.  187;  Hanson  v.  Transportation  Co.. 
38  La.  Ann.  Ill;  Wagner  t.  Railway  Co.,  07  Mo.  512.  10  S.  W.  4S(i; 
:M(rGee  v.  Railway  Co.,  92  Mo.  208,  4  S.  W.  739.  In  Dunn  v.  Rail- 
way Co.,  58  Me.  187,  it  is  said:  "Tlie  regulations  of  the  dofemiani 
corporation  are  binding  on  its  servants.  Passengers  are  not  pif- 
sumed  to  know  thtnu.  Tlieir  Icnowlodge  must  be  affirmatively 
proved.  If  the  servants  of  the  corporation,  who  are  bound  to  know- 
its  regulations,  neglect  or  violate  them,  the  principal  should  bear  ilif 
loss  or  injury  arising  from  sucJi  neglect  or  violation,  rather  than 
strangers.  The  con)oration  .selects  and  appoints  its  servants,  and  it 
should  be  resi)onsil)le  for  their  conduct  wliile  in  its  employmoni.  it 
alone  has  tlie  liglit  and  the  power  of  removal."  In  Wliitelicad  v. 
Railway  Co.,  99  Mo.  263,  11  S.  W.  751.  it  was  held  that  a  conductor 
of  a  freight  train,  who  has  entire  charge  tliereof.  and  wlio  Is  under 
the  duty  of  preventing  persons  from  riding  thereon,  either  witJi  or 
without  payment  of  fare,  is  acting  in  the  scope  of  his  emph.yin.'iii 
when  he  permits  a  person  to  ride  in  the  caboose,  and  the  coiuimny 
is  thereafter  bound  to  use  at  least  ordinary  care  towards  sucli  person. 
4  l^ucas   V.   Railway   Co.,  33   Wi.-^.   41;    Roeinu   v.    Itailway   Co.,   91 

^.185) 


§    225  CARRIERS   OF   PASSENGERS.  (Cll.    16 

pie  that,  by  permitting-  passengers  to  ride  on  part  of 
its  freiglit  trains,  the  company  has  clothed  its  freiglit 
conductors  with  apjjarent  authority  to  receive  passen- 
gers, as  to  the  general  j)ublic  unable  to  distinguish, 
by  their  general  api^earance,  the  passenger  carrying 

Wis.  592,  65  N.  W.  506:  Everett  v.  Railway  Co.,  9  Utah,  340,  34 
Pac.  289.  So,  if  a  railroad  company  accepts  a  passenger's  fare,  and 
permits  him  to  ride  on  a  freight  train,  he  is  a  passenger,  within  the 
meaning  of  the  law,  and  the  company  is  bound  by  the  same  degree 
of  care  as  though  it  was  a  passenger  train.  International  «&  G.  \. 
Ry.  Co.  V.  Irvine,  64  Tex.  534;  Edgerton  v.  Railroad  Co.,  39  N.  Y. 
227,  affirming  35  Barb.  (N.  Y.)  389;  Whitehead  v.  Railway  Co.,  IH) 
Mo.  263,  11  S.  W.  751.  See,  also,  ante,  §  17.  One  riding  on  a  freight 
train  on  which  passengers  are  allowed  to  be  carried  is  a  passenger, 
though  he  may  have  boarded  the  train  without  the  conductor's  knowl- 
edge or  permission,  and  paid  no  fare,  if  the  conductor,  after  becom- 
ing aware  of  his  presence,  permits  him  to  remain.  Sheiinan  v.  Rail- 
road Co.,  72  Mo.  62.  One  who  rides  in  a  freight  train  which  occa- 
sionally carries  passengers,  and  pays  his  fare,  is  a  passenger.  Mo 
bile  &  O.  R.  Co.  v.  McArthur,  43  Miss.  180.  Where  a  railroad  com- 
pany, in  accordance  \^ith  its  custom,  pertuits  a  drover  to  accompany 
his  stock  on  the  train,  in  consideration  of  the  freight  paid  for  the 
stock,  the  rights  of  the  drover  as  a  passenger  are  not  affected  by 
the  fact  that  passengers  are  not  permitted  to  travel  on  the  freight 
train.  Flinn  v.  Railroad  Co.,  1  Houst.  (Del.)  469.  A  shipper  of 
freight  who,  by  direction  of  the  company's  agent,  gets  on  the  caboose 
of  that  train  for  the  puri>ose  of  being  transported,  is  a  passenger, 
whether  he  has  paid  fare  or  not.  Secord  v.  Railway  Co.,  18  Fed. 
221.  Evidence  that  a  railroad  company  is  accustomed  to  carry  pas- 
sengers on  freiglit  trains,  and  that  there  were  several  passengers  on 
the  freight  train  from  which  plaintiff  was  expelled,  is  sufficient  to 
show  that  passengers  were  entitled  to  be  carried  on  that  train.  Illi- 
nois Cent.  R.  Co.  v.  Sutton,  53  111.  397.  Where  a  passenger  makes 
due  in(iuiry  of  a  ticket  agent  whether  a  freight  train  carries  passen- 
gers, and  is  informed  that  it  does,  and  gets  on  boai'd  with  the  knowl- 
edge of  the  conductor,  the  couipauy  is  liable  for  his  ejection  from 
that  train  by  the  coii("uctor.  who  relusts  to  receive  his  ticket.  Boehm 
V.  Railway  Co.,  91  Wis.  592,  65  N.  W.  506.  , 

(580) 


Ch-    16)  WHO    AKE    PASSENGERS.  §    225 

from  the  iion  passenger  carrying  freight  trains/ 
So,  where  a  statute  requires  all  railway  companies  to 
cari'y  passengers  on  local  freight  trains,  a  peison  wlio 
is  permitted  to  board  a  freight  train  without  objec- 
tion, and  whose  fare  is  accepted  by  the  condiutor,  has 
a  right  to  presume  that  the  train  is  a  local  freight,  and 
he  is  entitled  to  all  the  rights  of  a  passenger. 


6 


B  The  principles  wbicn  oujrlit  to  govern  this  class  of  cases  arc- 
rery  clearly  and  forcibly  stated  by  Sherwood.  J.,  in  Beriy  v.  Rail- 
way Co.,  124  Mo.  223.  '^U,  25  S.  W.  221),  2.->9.  "From  those  au- 
thorities this  principle  is  clearly  deducible:  That  the  conductor  of  a 
freight  train  cannot  create  the  relation  of  passenger  and  common  car- 
rier between  his  principal,  the  company,  and  the  applicant  for  pa.s- 
sage,  unless  such  conductor  has  authority  so  to  do:  that  tiiis  au- 
tlicrity  may  be  either  real  or  apiiareut,  and,  if  the  latter,  the  appli- 
cant must  be  ignorant  that  the  authority  thus  apparent  is  not  real; 
and  that,  notwithstanding  such  apparent  authority,  if  the  applicant 
be  advised  that  the  authority  is  morely  simulated,  by  reason  of  hi!ii,' 
In  violation  of  the  rules  of  the  company,  he  cannot  become  a  passen- 
ger, either  as  to  passage,  privileges,  or  protection;  and  this  because  of 
the  lack  of  power  in  the  conductor  to  create  an.v  contractual  relation 
■between  his  principal  and  the  person  seeking  tran.-!it.  The  initial 
question  in  all  such  cases  is  the  simple  one  of  agency.  If  the  con- 
ductor has  been  by  his  principal  held  out  as  possessing  power  to 
make  such  a  contract,  or  has  apparently  l>een  clothed  willi  tlie  habili- 
ments of  such  authority,— as,  ex.  gr.,  by  reason  of  some  freight  trains 
being  allowed  to  carry  passengers,  and  others  being  forbid  len  s  >  to  do, 
and  the  public  being  unable  to  distinguish  by  ilicir  general  apiK-ar- 
ance  such  passenger  cairying  from  tlie  non  passenger  carrying  trains, 
— in  that  event  a  party,  not  being  aide  to  distinguish  one  kind  of 
train  from  tlie  other,  and  unaware  of  any  rule  of  the  company  forbid- 
ding it,  may  in  good  faith  go  on  such  non  passenger  carrying  freight 
ti-ain,  paj'  his  fare,  and  enjoy  all  the  privileges  .lud  lu-otection  imm-- 
taining  to  the  position  of  passenger.  The  principle  here  ainnumced 
is  but  in  conformity  to  one  of  tlie  most  familiar  doctrines  of  tlie  law 
of  agency,  which  remains  immutably  tlie  same,  no  matter  what  the 
varied  circumstances  or  conditions  in  whicli  it  may  be  applied." 

6  Arkansas  Midland  Ky.  Co.  v.  (irillith  (Ark.)  :\i)  .S.  \V.  .'..")(». 

(587) 


§  226  CARRIERS  OF  PASSENGERS.  (Ch.  16 

All  the  cases,  however,  unite  in  holding  that  one 
who  knows  that  he  is  violating-  tlie  rules  of  the  com- 
pany by  riding  on  a  fieight  train,  is  not  a  passenger, 
though  he  has  the  conductor's  j)ermission,  and  though 
he  has  jjaid  fare.^ 

§  226.     PERSON    ON    OTHER   NON    PASSENGER   CAR- 
RYING VEHICLES. 

The  principles  above  laid  down  are  also  applicable 
in  determining  whether  or  not  a  person  riding  on  a  non 
passenger  carrying  vehicle  other  than  a  freight  train  is 
a  passenger.  If  a  person,  by  his  own  solicitation  or 
consent,  is  carried  on  a  vehicle  which  is  not  used  for 
passenger  carriage,  there  can  be  no  presumption  that 
he  is  a  ijassenger,  though  the  owner  be  a  common  car- 
rier by  other  and  different  means  of  conveyance.^      A 

7  Railroad  v.  Hailey,  94  Tenn.  383,  29  S.  W.  367;  Houston  &  T.  C. 
Ry.  Co.  V.  Moore,  49  Tex.  31;  Whitehead  v.  Railway  Co.,  22  Mo. 
App.  60;  Texas  &  P.  Ry.  Co.  v.  Hayden,  6  Tex.  Civ.  App.  745.  2(i 
S.  W.  331.  Where  the  eouductor  refuses  permission  to  a  person  to 
ride  on  a  freight  train,  tehing  him  that  it  is  contraiy  to  niles  to  so 
ride,  tlie  faet  that  a  brakeman  afterwards  permits  such  person  to 
ride  will  not  constitute  him  a  passenger.  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Campbell,  76  Tex.  3  74,  13  S.  W.  19.  A  purchaser  of  a  round-trip 
ticket  has  no  right  to  ride  on  his  return  trip  on  a  freight  train,  in 
kuown  violation  of  the  company's  rules,  and  he  may  be  ejected  there- 
from.    Claybrook  v.  Railway  Co.,  19  Mo.  App.  432. 

§  226.  1  Snyder  v.  Railroad  Co..  42  La.  Ann.  302.  7  South.  ."582.  In 
this  case,  a  railroad  company,  for  its  convenience  anil  that  of  shipper-, 
had  constructed,  at  the  termination  of  its  track  at  Black  river,  an 
elevator  or  platform  car,  Avhich  was  used  in  lowering  and  raising 
freight  on  an  incline  track,  extending  from  its  depot  on  the  bank  to 
the  water's  edge.  Held,  that  a  shipper  of  fish,  who  undertakes  to 
ride  on  the  car  up  the  incline  to  the  depot,  without  defendant's  cou- 
(088) 


Ch.    16)  WHO    ARE    PASSENGERS.  §    220 

person  riding'  on  a  tni^boat,  not  designed  for  tlie  car- 
riage of  passengers,  is  not  a  passenger,  though  invited 
aboard  the  boat  bv  employes  thereon,  where  the  em- 
ployes have  been  forbidden  to  carry  passengers,  and 
passengers  have  never  been  carried  on  the  boat  with 
the  consent  of  the  company's  representatives." 

One  transported  on  a  hand  car  which  is  us(m1  by 
the  railway  company  for  the  convenience  of  its  em- 
ployes, and  on  which  the  carriage  of  passengers  is  for- 
bidden by  the  rules  of  the  company,  does  not  occupy 
towards  it  the  relation  of  a  passenger,  though  he  may 
be  ignorant  of  such  rules,  if  there  is  no  custom  to  per- 
mit persons  to  ride  on  the  hand  car,  shown  to  have  been 
known  to  or  acquiesced  in  by  the  officials  of  the  com- 
pany.^ But  if  it  is  shown  that  a  hand  car  is  sometimes 
used  by  the  company  for  the  transportation  of  passen- 
gers, and  that  none  of  its  rules  are  violated  thereby,  a 
person  riding  on  a  hand  car  at  the  invitation  of  one  of 
the  company's  agents  is  a  passenger.*       So,  a  train 

sent,  is  not  a  passenger,  but  a  trespasser,  and  there  can  bo  no  recov- 
ery for  his  ileatli  caused  by  the  breaking  of  the  wire  rope  by  which 
the  car  was  operated. 

2  Coolv  V.  Navigation  Co..  76  Tex.  353,  13  S.  W.  47.">. 

3  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Dawkius,  77  Tex.  22H,  13  S.  W.  !>,S-J: 
Railway  Co.  v.  Boiling,  ,59  Ark.  395,  27  S.  W.  49:2;  International  .V 
G.  N.  R.  Co:  V.  Cock,  CS  Tex.  713,  5  S.  W.  635.  Owing  to  the  wreck 
of  a  freight  train,  a  railroad  company  declined  to  nui  Its  passenger 
train.  The  conductor  of  the  train,  without  knowledge  of  his  supe- 
riors, procured  a  hand  car  to  go  to  the  scone  of  the  wreck,  and  took 
plaintiff  on  board,  collecting  from  her  the  usual  J'aie.  The  li:uid  car 
jumpe*  the  track,  and  plaintiff  was  injured.  Held,  that  pl.-iiiiiitT  was 
not  a  passenger,  and  could  not  recover.  Cincinnati,  J.  tt  .M.  K.  <  o.  v. 
Morley,  4  Ohio  Cir.  Ct.  R.  559. 

4  Prince  v.  Railway  Co.,  64  Tex.  144.  A  prison  who  ri.lcs  on  a 
liund  car,  at  the  invitation  of  a  section  lor<'iu:iii,  is  not  ii  itiissciigcr, 

(5SD) 


§  226  CARRIERS  OF  PASSENGERS.  (Ch.  J  6 

master,  who  is  the  representative  of  the  company  on 
his  division  of  the  road  in  respect  to  all  matters  con- 
nected with  the  use  of  the  road,  cars  of  all  kinds,  and 
the  service  of  employes,  is  acting-  within  tlie  apparent 
scope  of  his  authority  when  he  directs  certain  persons 
to  be  transported  on  a  hand  car,  though  the  company's 
rules  forbid  the  use  of  hand  cars  for  that  purpose.^ 

One  who,  without  invitation  of  an  authorized  agent, 
and  without  payment  of  fare,  takes  passage  on  a  tim- 
ber train,  which  is  forbidden  to  carry  other  than  those 
engaged  in  the  shipment  of  lumber,  he  not  being  of  that 
class,  is  not  a  passenger,  but  a  trespasser.®      So,  one 

unless  he  can  show  that  the  foreman  had  express  authority  from  the 
company  to  receive  passengers  on  hand  cars,  or  that  there  was  such  a 
general  an^i  continuous  custom  on  the  part  of  the  foreman  to  receive 
passengers  as  would  be  notice  to  the  company  and  the  public.  Willis 
V.  Railroad  Co.  (N.  C.)  2G  S.  E.  784. 

5  International  &  G.  N.  R.  Co.  v.  Prince,  77  Tex.  5G0,  14  S.  W.  171. 
Where  a  detective  employed  by  a  railroad  company  to  ferret  out  thefts 
from  its;  cars  is  directed  by  an  authorized  agent  to  go  at  once  from 
one  station  to  another  on  its  road,  and,  on  going  to  the  station,  finds 
a  hand  car  ready  for  his  reception,  on  which  he  is  requested  to  make 
the  journey,  it  will  be  presumed  that  the  hand  car  was  furnished  and 
tendered  to  him  by  an  authorized  agent  of  the  company.  Pool  v. 
Railway  Co.,  56  Wis.  227,  14  N.  W.  40. 

6  Railroad  Co.  v.  Meacham,  91  Tenn.  428,  19  S.  W.  232.  Deceased, 
who  had  been  hired  to  go  to  work  for  a  logging  company,  was  in- 
structed by  the  superintendent  to  get  his  blanket  and  outfit  some 
distance  from  the  camp,  and  return  and  report  for  duty,  and  to  ride 
on  one  of  the  lumber  company's  logging  trains  for  that  purpose.  Held 
that,  while  so  riding,  deceased  was  neither  a  servant  nor  a  passenger, 
but  that  he  was  legally  on  the  train,  and  that  the  company  owed  him 
the  duty  of  exercising  ordinary  cai-e  in  the  management  of  its  train, 
though  it  had  never  authorized  the  use  of  such  train  for  passeuger 
traffic.  Albion  Lumber  Co.  v.  De  Nobra,  19  C.  C.  A.  1G8,  72  Fed. 
739.     Several  persons  got  on  a  caboose  attached  to  a  construction 

(590) 


Ch.    16)  WHO    ARE    PASSENGERS.  §    L'iT 

Avho  enters  a  car  attached  to  a  provision  nnd  pay  nai:i, 
kiiowiug  its  character,  without  the  consent  of  the  <(.i-- 
poration  or  its  ajients,  and  in  violation  of  its  rules,  is  a 
trespasser.'  Wliere  a  private  corporation  c*ni;a^ed  in 
making  iron  and  mining  coal  operates  a  railroad  in  con- 
nection with  its  business,  the  unautli(»ri/,('d  act  of  iis 
yard  master  in  permitting  an  excursion  train  from  an- 
other road  to  go  upon  its  traclv  does  not  render  it  liable 
for  an  injur3'  to  a  passenger  in  a  collision  with  one  of 
its  cars,  caused  by  the  negligence  of  its  employes.  The 
excursion  train  was  on  defendant's  track  without  law- 
ful authority,  and  it  would  be  liable  only  iu  case  of 
wanton  and  willful  or  intentional  wrong.** 

227.     PERSON  ON  WRONG  TRAIN. 

It  is  a  principle  of  law  too  well  settled  to  require 
further  elucidation  that  a  person  who,  by  mistake,  gets 
on  a  passenger  train  other  than  the  one  upon  which  he 
expected  to  take  passage,  is,  nevertheless,  a  passenger 

train.  >\ithoiit  olijection  from  tlie  conductor.  A  short  distance  from 
the  station  the  train  brolve  down,  and  the  caboose  had  to  lie  left 
behind.  The  conductor  demurred  to  these  jiersons  ridinj;  any  fur- 
ther, but  niade  no  imiierative  objection.  Wlien  the  train  re:iciH'<l  tlie 
end  of  its  outgoing  trip,  tlie  conductor  notilied  tin-m  tliat  the  train 
would  start  back  in  20  minutes.  They  returned  in  time,  and  took 
their  seats  on  a  flat  car  next  to  the  locomotive.  On  this  return  trip 
tlie  train  was  derailed,  and  some  were  seriously  injured  and  some 
killed.  The  conductor  had  no  authority  to  receive  iiass»-ngers,  and 
they  paid  no  fare,  and  there  was  evidence  that  at  least  one  of  them 
had  notice  that  it  was  a;;ainst  the  comiiany's  I'nlcs  td  lereive  iias^en- 
gers  on  that  train.  Held,  as  matter  of  law,  that  tliese  persons  w«Te 
not  passengers.      Kerry  v.  Railway  Co.,  124  .Mo.  S^::.  -T)  S.  W.  2-J'.t. 

1  SoutJiwtstern  H.  v.  Singleton,  (itj  (!a.  'S>'2. 

8  Vormus  v.  Railroad  Co.,  U7  Ala.  :i2(J,  12  South.  111. 

1.1!)  1) 


§  228  CARRIERS  OF  PASSENGERS.  ((Jll.  IG 

upon  the  trjuii  lie  is  on;  and,  wliile  on  the  train,  the 
company  owes  him  the  same  duty  of  protection  against 
negligence  as  to  other  passengers/ 


§  228.     WHEN  RELATION  BEGINS— PERSON  AT 

STATION. 

To  become  a  passenger,  and  entitled  to  protection  as 
such,  it  is  not  necessary  that  a  person  shall  have  en- 
tered a  train  or  paid  his  fare,  but  he  is  such  as  soon  as 
he  comes  within  the  control  of  the  carrier  at  the  sta- 
tion, through  the  usual  approaches,  w^ith  intent  to  be- 
come a  passenger.^  There  can  be  no  doubt  that  a  car- 
rier is  under  the  duty  of  exercising  care  for  the  safety 
of  such  a  person,  since  he  conies  on  the  carrier's  prem- 
ises by  invitation.  But,  as  to  the  degree  of  care  that 
the  carrier  is  bound  to  exercise  towards  such  a  person, 
there  is, as  we  have  seen,considerable  conflict  in  the  au- 
thorities.^ The  supreme  judicial  coui-t  of  Massachu- 
setts has  recently  said:  "When  one  has  made  a  con- 
tract for  passage  upon  a  vehicle  of  a  common  carrier, 

§  227.  1  Lewis  v.  Caual  Co.,  14.")  X.  Y.  .jOS.  40  X.  E.  248,  affirmiug 
80  Hun,  192,  30  X.  Y.  Supp.  28;  Cincinnati,  H.  &  I.  R.  Co.  v.  Carper, 
112  Ind.  2G,  13  X.  E.  122,  14  X.  E.  352;  Columbus,  C.  &  I.  C.  Ry. 
Co.  V.  Powell,  40  Ind.  37;  International  &  G.  N.  Ry.  Co.  v.  Gilbert, 
<J4  Tex.  536. 

§  228.  1  Bnltimore  &  O.  R.  Co.  v.  State,  81  Md.  371,  32  Atl.  201. 
It  is  not  necessary  that  there  be  an  express  contract,  in  order  to  con- 
stitute the  relation  of  passenger  and  carrier,  nor  that  there  should  be 
a  consummated  contract.  The  contract  may  be  implied  from  slight 
circumstances,  and  it  need  not  be  actually  consummated  by  the  pay- 
ment of  fare,  or  entry  into  the  car  or  boat  of  the  carrier.  North  Chi- 
<?ago  St.  R.  Co.  V.  Williams,  140  111.  275,  29  X.  E.  072. 

2  Ante.  §  47. 

(5<J2) 


Ch.    16)  WHO    ARE    PASSEXGKRS.  §    22S 

and  has  presented  himself  at  the  proper  place  to  bi* 
transported,  his  right  to  care  and  protection  bej;ins, 
and  ordinarily  it  continues  until  he  has  arrived  at  his 
destination,  and  reached  the  point  Avhere  the  carrier  is 
accustomed  to  receive  and  discharge  passengers.  So 
long  as  he  stands  strictly  in  this  relation  of  a  passen- 
ger, the  carrier  is  held  liable  to  the  highest  degree  of 
care  for  his  safety.  While  he  is  upon  the  premises  of 
the  carrier,  before  he  has  reached  the  place  designed 
for  use  by  passengers  waiting  to  be  carried,  or  put  him- 
self in  readiness  for  the  performance  of  the  contract, 
the  carrier  owes  him  the  duty  of  ordinary  care,  as  he  is 
a  person  rightfully  there  by  invitation."  ^  But  it  is 
generally  held  that  a  person  who  enters  a  railroad  sta- 
tion shortly  before  the  advertised  time  of  departure  of 
the  train  on  which  he  intends  to  take  passage  is  a  pas- 
senger from  the  moment  he  enters  on  the  company's 
premises,  though  he  has  not  purchased  a  ticket,*  or 
though  the  agent  refuses  to  sell  him  a  ticket.^  So,  one 
who  has  actually  purchased  a  ticket,  and  who  <Miters 

8  Dodge  V.  bteamship  Co.,  148  Mass.  207,  19  N.  E.  373.  A  man 
walking,'  towards  a  railroad  station,  witli  tlie  intention  of  buyinj;  a 
ticket  and  taking  a  train  after  be  gets  there,  is  not  a  passenger  i)ef<tre 
he  reaches  the  station,  even  if  he  might  be  one  in  Hie  same  place  if 
he  iiad  begun  his  journey.  June  v.  Kailroad  Co.,  153  Mass.  79,  -li  N. 
E.  2:38. 

4  flrimes  v.  Pennsylvania  Co..  30  Fed.  72. 

5  Norfolk  &  W.  K.  Co.  v.  Galliher,  SO  Xa.  039.  IG  S.  E.  93."..  No 
matter  Jiow  a  person  reaches  a  railroad  station,— as  by  trespassing  on 
a  train,- yet,  if  he  then  proceeds  to  tlie  ticket  oltioe  to  purchase  a  tie'.v.  t. 
with  the  intention  of  becoming  a  passenger,  he  is  entitled  to  iirotec- 
tion  as  such  while  traveising  the  way  usually  taken  by  i.assengers 
to  the  ticket  ottice.  Baltimore  &  O.  K.  Co.  v.  State,  si  .Md.  371,  32 
Atl.  201. 

V.  1  FI^.T.CAR.PAS. — 38  (593) 


§  228  CARRIERS  OF  PASSENGERS.  (Ch.  16 

the  waiting  room  at  the  station  not  an  unreasonable 
length  of  time  before  the  train  en  route  for  his  destina- 
tion is  due,  is  a  passenger.*'  It  has  even  been  held  that 
one  who  enters  the  waiting  room  of  a  station  with  the 
intention  of  taking  a  train  scheduled  to  arrive  in  about 
20  minutes  is  a  passenger  while  so  waiting,  though  she 
has  not  purchased  a  ticket;  and  her  presence  in  the 
station  is  notice  to  the  company's  agent  of  her  inten- 
tion to  become  a  jDassenger/  And  on^  who  has  pur- 
chased a  ticket  at  a  station  has  all  the  rights  of  a  pas- 
senger while  going  by  the  usual  w^ay  from  the  station 
to  the  train.  ^      So,  one  waiting  at  a  station  for  passage 

6  Batton  V.  Railroad  Co.,  77  Ala.  591.  The  purchase  of  a  ticket 
good  for  a  passage  betu-een  two  stations  on  a  line  of  railway  creates 
the  relation  of  caiTier  and  passenger.  Wabash,  St.  L.  &  P.  Ry.  Co. 
V.  Rector,  104  111,  296. 

7  Texas  &  P.  Ry.  Co.  v.  Jones  (Tex.  Civ.  App.)  39  S.  W.  124. 

8  Warren  v.  Railroad  Co.,  8  Allen  (Mass.)  227;  Baltimore  &  O.  R.  Co. 
V.  State,  G3  Md.  138;  Chicago  &  E.  I.  R.  Co.  v.  Chancellor,  60  111.  App. 
525.  One  who  enters  a  waiting  room,  and  inquires  for  a  ticket,  and  is 
directed  by  the  agent  to  get  on  the  train  without  a  ticket,  is  a  passen- 
ger while  walking  from  the  station  house  to  the  train,  and  is  en- 
titled to  the  high  degree  of  care  which  carriers  must  exercise  to- 
wards passengers.  Allender  v.  Railroad  Co.,  37  Iowa.  264.  But  it 
has  been  held  that  a  person  crossing  a  side  track  at  a  railroad  station 
to  take  a  train,  without  having  purchased  a  ticket,  is  not  a  passenger, 
but  stands  in  the  same  relation  as  a  person  endeavoring  to  cross  a 
railroad  track  at  a  highway  crossing,  and  the  raih'oad  company  need 
exercise  only  ordinary  care  for  his  safety.  Indiana  Cent.  Ry.  Co.  v. 
Hudelson,  13  Ind.  325.  Any  person  who  is  going  in  the  proper  way, 
by  any  proper  approach,  to  take  the  cars,,  or  purchase  a  ticket,  or  to 
get  baggage  checked,  is  a  passenger.  Johns  v.  Railroad  Co.,  39  S. 
C.  162,  17  S.  E.  698.  So  is  one  who  comes  upon  the  premises  of  a 
railroad  company  at  a  station,  with  a  ticket,  or  with  the  purpose  o'" 
purchasing  one.  Tillett  v.  Railroad  Co.,  115  N.  C.  662,  20  S.  E.  480; 
Central  R.  &  B.  Co.  v.  Perry,  58  Ga.  461. 

(594) 


Ch.    16)  WHO    ARE    PASSENGERS.  §    22S 

on  a  train  soon  to  depart,  who  is  invited  by  the  tii  Icet 
agent  to  sit  in  an  empty  car  standing  on  a  side  track, 
wliile  the  station  room  is  being-  cleaned,  is  entitled  to 
the  same  protection  from  the  company  while  in  the  car 
as  if  in  the  regular  waiting  room.  In  either  place  the 
person  is  a  passenger  in  the  care  of  the  company.®  A 
person  w^ho  goes  to  a  flag  station  on  a  railroad  at  which 
there  is  no  ticket  office,  for  the  purpose  of  boarding  a 
train,  is,  upon  properly  signifying  an  intention  to  get 
upon  a  passenger  train  which  has  actually  stopped,  en- 
titled to  the  rights  of  a  passenger.'" 

Of  course,  one  who  actually  enters  a  train  designed 
for  the  transportation  of  passengers,  with  the  honest 
purpose  of  securing  the  right  to  ride  therein,  is  a  pas- 
senger while  waiting  for  the  train  to  start.''  So,  a 
passenger  who  has  been  carried  on  the  line  of  a  rail- 

9  Shannon  v.  Railroad  Co.,  78  Me.  52,  2  Atl.  078.  An  excursion  car 
was  run  beyond  the  station  grounds,  onto  a  side  track.  When  the 
time  to  begin  the  return  trip  came,  in  the  nighttime,  a  number  of  ex- 
cursionists got  on  the  car,  and  shortly  afterwards  the  conductor  came 
along,  and  asked  for  help  to  shove  the  car  onto  the  main  track.  One 
of  the  passengers,  for  this  pm-pose,  left  the  car  on  the  opposite  side 
from  that  on  which  he  got  on,  and  fell  from  the  bridge  on  which  the 
car  was  standing.  Held  that,  though  the  car  was  not  in  the  station 
grounds,  yet  as  the  conductor  had  taken  charge  of  it,  and  the  excur- 
sionists ha;d  placed  themselves  under  his  care,  plaintiff  was  a  pa^^scn- 
ger  at  the  time  he  fell.     Bellman  v.  Kailroad  Co.,  42  IIuii,  130. 

10  Western  &  A.  K.  Co.  v.  Voils  (Ga.)  20  S.  E.  483. 

11  Cross  v.  Railroad  Co.,  56  Mo.  App.  004;  Illinois  Cent.  R.  Co.  v. 
Sheehan,  dO  111.  App.  90.  So  Is  a  person  who  is  injured  while  walk- 
ing along  the  gangplank  of  a  steamer,  with  a  view  of  making  a  jour- 
ney on  a  pass.  Rogers  v.  Steamboat  Co.,  86  Me.  201.  2<..  Atl.  1(h;d. 
One  who  ha.s  purchased  a  railway  ticket,  and  entered  the  i.ropcr  tram 
for  transportation,  is  a  passenger  while  riding  thereon.     Clioutc  v. 

Railway  Co.,  07  Mo.  App.  105. 

(595) 


§  228  CARRIERS  OF  PASSENGERS.  (Ch.  1 C) 

way  in  a  passenger  car  which  that  company  switches 
off  upon  the  line  of  a  connecting  railway  sustains  the 
relation  of  passenger  to  such  connecting  railway  dur- 
ing the  time  the  car  is  stationary  and  he  remains  in  it, 
if,  according  to  the  usual  course  of  business,  that  com- 
pany is  accustomed  to  receive  presently  cars  so  deliv- 
ered to  it,  couple  them  onto  its  trains,  and  carry  them 
over  its  own  lines.  This  is  true  whether  the  passen- 
ger, at  the  time  of  being  injured,  has  procured  a  ticket 
or  i^aid  his  fare  for  a  passage  over  the  connecting  line, 
or  not/^  So,  one  who  holds  a  ticket  good  over  two 
connecting  railroads,  and  who,  on  arrival  at  the  end  of 
the  first  carrier's  route,  goes  to  the  depot  of  the  con- 
necting carrier,  and  remains  there,  without  objection, 
w^aiting  for  the  next  train,  is  a  passenger  while  so  wait- 
ing, though  the  next  train  is  not  scheduled  to  leave  for 
10  hours;  and  the  connecting  carrier  is  bound  to  pro- 
tect her,  as  a  passenger,  from  assault  and  insult  while 
so  waiting/^ 

But  a  carrier  is  not  under  a  duty  of  exercising  care 
for  the  safety  of  a  person  who  comes  on  its  premises  for 
the  purpose  of  boarding  a  train  at  a  place  not  a  regular 
station  or  stopping  place  for  receiving  and  discharging 
passengers.  Thus,  a  stock  drover  who  goes  into  a  rail- 
road freight  yard,  in  the  nighttime,  about  an  hour  be- 
fore the  starting  time  of  his  train,  and  who  is  ordered 
out  of  the  caboose  because  the  train  is  not  ready,  and 
who  then  takes  a  position  on  one  of  the  switch  tracks, 
is  not  a  passenger  while  there;    and  mere  negligence, 

12  Chattanooga,  R.  &  C.  R.  Co.  v.  Huggins,  89  Ga.  494,  15  S.  E.  848. 

13  St.  Louis  S.  W.  Ry.  Co.  v.  Griffith  (Tex.  Civ.  App.)  3.j  S.  W.  741. 


Ql^     16)  WHO    ARE    PASSENGERS.  §    22S 

short  of  willfulness,  will  not  render  the  company  liable 
for  injuries  intiicted  by  beinii  run  over  by  a  train  while 
on  the  track/*     So,  the  fact  that  a  person  -...s  ..n  the 
platform  of  a  flaji'  station  whi-re  there  is  no  di'i">t  or 
waiting  room,  with  the  intention  of  takini::  a  train  aiul 
paying  his  fare,  does  not  create  the  relation  of  passen- 
ger and  carrier,  there  being  nothing  to  show  that  the 
carrier  was  aware  of  his  intention  to  board  the  train.^* 
So,  one  wlio,  by  signals,  causes  a  passenger  train  to 
stop  at  night  at  a  point  not  a  stopping  place,  and  while 
endeavoring  to  enter,  though  with  proper  .•a.ni..iK  is 
injured  bv  the  sudden  starting  of  tlie  train,  cannot  re- 
cover for  the  injury,  if  his  purpose  to  take  passage  was 
unknown  to  the  conductor  au<l  other  trainmen.     The 
fact  that  he  succeeded  in  entering  the  car,  ami  that  the 
conductor,  finding  him  there,  collected  fare  from  him, 
as  from  other  passengers,  does  not  make  him  a  passen- 
ger at  the  time  he  boarded  the  train  and  was  injured.'' 

14  Henry  v.   Raihvny  Co.,  TC  Mo.  2ss.     Soo,  ulso,   to  sa.no  c-ffoct. 
llaase  v.  xNavigation  Co.,  19  Or.  ;i54,  24  Fac.  23S. 

15  Denver,  S.  P.  &  P.  R-  Co.  v.  Piokard,  S  Colo.  UW,  b  1  a..  14.). 

16  Georfjia  Pac.  Ry.  Co.  v.  Robinson.  GS  Miss.  .14:^.  10  Sunt!,.  00. 
One  who,  without  the  ImowledRe  of  any  of  the  iraiunHU  -r  servants 
of  a  raiU-oad  conn.uny,  endeavors  to  get  on  a  train  which  has  sto,.iH.c. 
to  discharge  passengers  at  a  station  ^vhere  it  i.s  not  acoxu^tonK-d  to 
.top  for  the  purpose  of  receiving  them,  <lo..s  not  th.-ruhy  benune  o. 
acauire  the  rights  of  a  passenger,  thovgh  he  has  a  ticUe.,  =u.    .anno 
recover  for  injuries  sustaine<l   by  the  sudden   s.ar.mg  of     he  .r  n 
^-hile  he  was  endeavoring  to  get  on  board.     Jones  v.  Ua.hoad  (  o..  IG. 
Mass    '>4o    30  N.  K.  101!).      One  who.  without    invi.atinu.  e.xpress  or 
;,nplie;  ;oes  on  board  a  steanu-r  lying  at  her  do...  at  a  , in.  when 
it  is  not  open  to  the  public,  is  a  uumv  licensee,  il   n..t  a  fesp.  s.so  . 
and  cannot -recover  for  iujurh-s  susiaiu.-d  by  -he  '-^  •«'-;■;;;     '" 
Ship's  crew.      Met,.alfe  v.  Stcan,ship  Co..  147  Mass.  M..  H.  V  K_  .-l. 


§  229  CARRIERS  OF  PASSENGERS.  (Cll.  16 

But,  if  a  common  carrier  is  in  the  habit  or  has  the  cus- 
tom of  receiving  and  discharging  passengers  at  a  phice 
other  than  a  regular  station, — as,  near  a  crossing  over 
an  intersecting  railroad, — a  person  who,  knowing  of 
such  a  custom,  attempts  to  boar<l  a  train  at  such  a 
place,  is  a  passenger,  and  not  a  trespasser.^^ 

§  229.     SAME— OMNIBUS  AND  STREET  CAR. 

One  who  has  signaled  an  omnibus  or  a  street  car  to 
stop  is  a  passenger  while  attempting  to  prudently  get 
on  board  after  the  driver  has  stopped  in  response  to 
his  signal.  The  stopping  of  the  vehicle  in  response  to 
his  signal  implies  a  consent  to  receive  him  as  a  passen- 
ger.^ But  the  special  duty  of  a  earner  to  exercise  a 
high  degree  of  care  begins  only  when,  by  coming  upon 
his  premises,  or  in  the  act  of  entering  his  vehicle,  the 
actual  relation  of  passenger  to  carrier  is   assumed. 

IT  North  Birmingham  R.  Co.  v.  Liddicoat,  99  Ala.  545,  13  South.  18. 
When  a  person  boarding  a  car  at  such  a  place  has  reached  a  place 
of  safety  inside  a  passenger  car,  then  certainly,  if  not  before,  he  be- 
comes entitled  to  all  the  rights  of  a  passenger.  Dewire  v.  Railroad 
Co.,  148  Mass.  34.3,  19  N.  E.  523.  One  who  enters  a  passenger  train, 
prepared  for  the  reception  of  passengers,  though  not  drawn  up  at 
the  station  platform,  intending  to  ride  in  such  car  to  another  station, 
and  having  the  money  to  pay  his  fare  to  the  conductor,  Avhich  he  may 
legally  do,  and  intends  to  do,  is  a  passenger.  Missouri,  K.  &  T.  Ry. 
Co.  of  Texas  v.  Simmons  (Tex,  Civ.  App.)  33  S.  W.  1096. 

§  229.  1  Brien  v.  Bennett,  8  Car.  &  P.  724;  Smith  v.  Railway  Co.. 
32  Minn.  1,  18  X.  W.  827.  Neither  an  entry  into  the  cars  of  a  street 
railroad,  uor  the  payuent  of  fare,  is  essential  to  create  the  relation  of 
carrier  and  passenger.  Being  within  the  waiting  room  provided  by 
the  company,  waiting  to  take  the  cars,  is  as  effectual  to  make  one  a 
passenger  as  if  he  were  within  the  body  of  the  car.  Gordon  v.  Rail- 
road Co..  40  Barb.  (N.  Y.)  51G. 
(598) 


Ch.    16)  WHO    ARE    PASSENGERS.  §    "JoO 

Hence  one  who  steps  out  on  a  cross  walk,  and  siiiiials 
a  street  car  to  stop,  which  signal  is  answcitMl  aHiriiia 
tively  by  the  driver,  is  not  a  passenger  while  so  si  a  ml 
ing,  waiting  for  the  car  to  stop;    and  her  liuht  in  re 
cover  damages  for  injuries  sustained  by  being  struck 
by  the  car,  which  was  unexpectedly  deflected  on  a  side 
track  on  which  she  was  standing,  does  not  dejMMid  on 
the  rules  governing  the  carrier's  dnty  to  a  pass  -ngei', 
but  on  those  governing  the  dutv  of  a  driver  <d'  a  veliii  1<' 
in  the  street  to  a  pedestrian  lawfully  therein. - 

§  230.     SAME— PERSONS  BOARDING  MOVING  TRAIN 

OR  STREET  CAR. 

One  who  attempts  to  board  a  moving  train  nmh^r 
such  circumstances  as  to  make  the  attempt  contribu 
tory  negligence  as  matter  of  law  is  not  a  passenger. 
One  making  such  an  attempt  is  outside  of  any  implied 
invitation  on  the  part  of  the  carrier,  and  accpiires  no 
rights  as  a  passenger  until  he  has  passed  the  danger 
which  meets  him  at  the  threshold,  and  has  put  himself 
in  the  proper  place  for  the  carriage  of  passengers,  i.  e. 
until  he  has  reached  a  place  of  safety  and  seated  liini 
self  inside  the  car.'     But  one  who  offers  to  pay  lor  a 

2  Donovan  v.  Ilailway  Co.,  Go  Conn.  201,  ;J2  Atl.  :\:>n. 

§  2:i().  1  Merrill  v.  Railroad  Co.,  KiJ)  Mas.';.  'S.IS,  1  X.  K.  .-.48:  S<'haofer 
V.  Railway  Co.,  128  Mo.  G4,  30  S.  W.  331;  Spannayh'  v.  Uailn.a.l  C^... 
31  111.  App.  400.  A  passenger  whose  fare  was  2.->  cciiis  liainli'il  tin- 
conductor  a  .?5  bill,  and  the  conductor,  being  unal>le  to  chaiige  ii,  re- 
tained it,  under  an  agreement  that  he  would  get  it  cliangeil  ai  llu' 
next  station,  which  was  also  the  passenger's  deslinalion,  and  rel\M-n 
the  balance  to  him.  On  arriving  tliere,  the  passenger  left  the  train, 
whi.h  stopped  2.".  or  :V)  minutes.  The  conductor  forgot  almnt  tin- 
matter,  and,  as  the  train  w:i<  moving  olT,  the  pa.ssenger  boarded  it  l.i 


§  230  CARRIERS  OF  PASSENGERS.  (Ch.  16 

ticket  at  the  ticket  office,  and  who  is  told  by  the  agent 
to  get  on  a  train, — a  freight  train, — and  pay  his  fare  to 
the  conductor,  is  a  passenger;  and  tlie  question  wheth- 
er he  forfeits  his  right  by  climbing  on  the  ladder  of  a 
freight  car,  because  the  train  was  already  in  motion 
when  he  got  out  of  the  ticket  office,  is  one  of  fact  for  the 
jury.' 

The  same  principles  apply  to  persons  boarding  mov- 
ing street  cars.  One  who  attempts  to  board  a  street 
ear  while  it  is  moving  so  rapidly  as  to  make  such  at- 
tempt contributory  negligence  as  matter  of  law  is  not 
a  passenger,  to  whom  the  company  owes  extraordinary 
care,  but  it  is  bound  only  to  the  use  of  ordinary  care  for 
his  safety  after  its  employes  have  discovered  his  dan- 
ger.^    But  a  person  is  not  to  be  considered  a  trespasser 

get  his  money.  The  concluctor  handed  him  back  his  bill,  and  lie 
jumped  off  at  a  point  not  intended  for  passengers.  Held,  that  his  so 
boarding  the  train  for  the  sole  purpose  of  getting  his  money  did  not 
create  the  relation  of  passenger  and  carrier  between  the  parties,  but 
that  he  could  not  be  regarded  as  a  trespasser,  but  was  a  person  law- 
fully OD  the  train.  Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Krouse,  30  Ohio 
St.  222.  As  to  contributory  negligence  in  boarding  moving  train,  see 
ante,  §§  149,  1.50. 

2  Ramm  v.  Railway  Co.  (Iowa)  G2  N.  W.  751.  One  who  attempts  to 
get  on  the  caboose  of  a  slowly-moving  train  at  a  s,tation,  in  obedience 
to  the  conductor's  command,  is  a  passenger  while  making  the  attempt, 
and  entitled  to  prote<  tion  as  such.  Murphy  v.  Railway  Co.,  43  Mo. 
App.  M2. 

3  Baltimore  Traction  Co.  v.  State,  78  Md.  409,  427,  28  Atl.  397.  One 
does  not  become  a  passenger  by  a  mere  attempt  on  his  part  to  board 
a  street  car  while  in  motion.  There  must  have  been  some  act  on  the 
part  of  the  carrier  indicating  an  acceptance.  Schepers  v.  Railway 
Co.,  126  Mo.  C>6o,  29  S.  W.  712;  Stager  v.  Railway  Co.,  119  Pa.  St.  70, 
12  Atl.  821.  The  failure  or  refusal  to  stop  a  street  car  does  not  jus- 
tify a  person  in  running  after  it,  and  attempting  to  board  it,  and  he 

(GOO) 


Cll.    16)  WHO    ARE    PASSENGERS,  §    2oI 

while  getting  ou  a  lioi'sc  car  in  iiiotioii,  llimigli  in  \  iohi- 
tiou  of  the  compauy's  rules,  where  the  coiulntior  lias 
waived  the  rule  by  making  no  objection  ami  givini:  no 
warning  when  he  sees  such  person  making  the  at- 
tempt.* 

§  281.     WHEN  RELATION   TERMINATES. 

A  passenger  on  a  railroad  train  continues  to  be  such 
until  the  ti'ain  has  arrived  at  his  destination,  and  he 
has  had  a  reasonable  opportunity,  by  safe  and  conven- 
ient means,  to  leave  the  car  and  the  station.^      An  ap- 

cannot  recover  for  injuries  sustained  in  tlie  attempt.     Basch  v.  Kail 
way  Co.,  40  111.  App.  .')So. 

4  North  Chicago  St.  R.  Co.  v.  AN'illianis.  140  111.  275,  29  N.  E.  (>7l'. 
In  this  case  it  was  said:  "But  we  are  not  prepared  to  hold  that  a 
party  is  a  trespasser  after  he  gets  on  a  horse  car,  even  though  no  fan- 
has  been  collected  of  him  before  he  meets  with  an  injury,  simply  be- 
cause he  has  violated  a  rule  of  the  company  as  to  the  mcKle  of  getting 
on."  A  12  year  old  boy  attempted  to  get  on  a  moving  horse  car. 
He  had  placed  one  foot  upon  the  step,  and  was  holding  to  the  railings 
with  both  hands,  when  the  driver  started  the  horses  with  a  jerk,  and 
the  boy  was  thrown  down  and  Injured.  Held,  that  the  boy  was  .a 
passenger.  McDonough  v.  Kailroad  Co.,  137  Mass.  210.  The  court 
said:  "The  length  of  time  he  had  been  upon  the  car.  and  his  position 
upon  it,  and  the  fact  that  he  was  changing  his  position,  ;in(l  hail  not 
assumed  his  seat  or  taken  his  .stand  upon  the  platform,  are  imni:iterial. 
Ho  was  in  the  car,  and  being  carried  by  it  on  his  journey.  The  in- 
struction that,  if  he  was  there  in  the  exercise  of  due  care,  lu-  had  tin' 
rights  of  a  passenger,  was  correct." 

§  231.  1  McKimble  v.  Railroad,  l.-^O  Mass.  rA2,  2  N.  E.  !I7.  But 
in  Dodge  v.  Steam.'^hip  Co.,  148  Mass.  207,  10  .\.  E.  :17:5,  it  is  said: 
"It  has  sometimes  been  said  that  a  jtassenger  at  tiic  end  of  his  Jour- 
ney retains  the  same  relation  to  the  carrier  until  he  has  left  the  car- 
rier's premises.  But  there  are  cases  which  indicate  that  the  con- 
tract of  carriage  is  performed  when  the  passenger  at  tlic  end  of  his 
journey   has  reached  a  safe  und  inoper  iii.ire,    where   persons   seek- 

((JUl) 


§  231  CARRIERS  OF  PASSENGERS.  (Cll.  IG 

proacli  to  a  railway  depot  on  premises  belonging  to  a 
railroad  company  constitutes  a  part  of  the  station 
grounds,  and  the  relation  of  passenger  and  carrier  does 
not  cease  until  after  the  passenger  has  left  the  ap- 
proach.- So  a  passenger  set  down  several  hundred 
yards  from  a  station  is  not  a  trespnsser  in  walking 
along  the  track  to  the  station/  So  the  fact  that  a  pas- 
senger, after  alighting  from  a  train,  walks  along  the 

ing  to  become  passengers  are  regularly  received  and  passengers  are 
regularly  discharged,  and  that  the  degree  of  care  to  which  he  is  then 
entitled  is  less  than  dnring  the  continuance  of  his  contract,  as  a  car- 
rier of  goods  is  held  to  a  liability  less  strict  after  they  have  reached 
their  destination  and  been  put  in  a  freight  house  than  while  they 
are  in  transit." 

2  Gulf,  C.  &  S.  F.  Ity.  Co.  v.  Glenk  (Tex.  Civ.  App.)  .30  S.  W.  27S; 
Stewart  v.  Railroad  Co.,  r,3  Tex.  289. 

3  Central  R.  R.  v.  Thompson,  76  Ga.  770.  Where  the  only  egress 
from  a  railroad  track  near  a  crossing  with  another  railroad  is  a 
highway  some  distance  from  tlie  crossing,  a  passenger  who  leaves 
the  train  at  the  crossing,  which  is  recognized  as  a  stjition  by  the 
railroad  company,  is  lawfully  on  the  railroad  track,  and  not  a  tres- 
passer, while  walking  along  it  to  reach  the  highway;  and  the  com- 
pany is  liable  for  his  death  w-hile  so  walking,  caused  by  the  negli- 
gence of  the  train  hands  of  a  following  train  in  failing  to  give  the 
statutory  signals  on  approaching  the  highway.  Anderson  v.  Railway 
Co.,  27  Ont.  441.  At  the  terminal  station  of  a  railroad  there  was 
snow  to  a  considerable  depth  on  both  sides  of  the  track.  A  brake- 
man  beat  down  the  snow  by  the  side  of  the  car  to  make  a  place  for 
plaintiff  to  alight,  Avho  was  a  woman  60  years  old,  and  the  only 
pa.ssenger  on  the  train.  After  standing  there  for  some  time,  w^aiting 
for  an  engine  to  remove  some  flat  cars  which  obstructed  her  passage, 
she  objected  to  remaining  there  any  longer.  The  brakemau  request- 
ed that  she  should  pass  over  these  cars,  and  leave  the  train  that 
way.  She  did  so,  but  in  attempting  to  get  down  from  the  last  car 
her  clothes  caught  in  the  coupling  pin,  and  she  fell  and  was  injured. 
Held,  that  hex*  relation  as  a  passenger  had  not  terminated  at  the  time 
of  the  accident,  and  that  defendant  was  bound  to  use  due  care  in 

(602) 


vCh.    IH)  WHO    ARE    PASSENGERS.  §    231 

platform  with  the  intention  of  ci'0ssin«»  the  trark  at  a 
point  where  she  has  no  right  to  cross,  does  not  make 
her  a  trespasser  or  a  licensee  while  on  the  i)latform.* 
So,  where  a  railroad  company,  at  a  stopping  place,  pro- 
vides means  for  ingress  and  egress  of  passengers  on 
onlj  one  side  of  its  tracks,  a  ])assenger  does  not  forfeit 
his  rights  as  such  by  intentionally  leaving  the  finin  -.». 
the  wrong  side.  He  would  still  be  a  passenger,  if,  by 
reason  of  the  company's  neglect  of  ])recautions  which  it 
should  have  taken,  he  leaves  the  cars  ui>on  the  wrong 
side,  and  thereby  loses  his  life  by  being  struck  by  a 
passing  train  on  a  parallel  track."  And  a  passenger 
who  falls  from  the  train  through  the  negligence  of  the 
company,  and  who  is  knowingly  left  in  a  dazed  state  on 
the  track,  is  not  a  trespasser.*^ 

But  a  passenger  ceases  to  be  such  by  stepping  off  a 
train  while  in  motion,  and  is  thereafter  not  entitknl  to 

furnisliing  her  means  to  alight.  Hartzig  v.  Railroad,  154  Pa.  St. 
364,  26  Atl.  310. 

4  Keefe  v.  Railroad,  142  Mass.  2.51.  7  N.  E.  874.  But  a  passenger 
ceases  to  be  such  when  he  leaves  the  train  at  destination,  and  pro- 
ceeds in  a  rever.'^e  direction  from  that  which  passengers  usually  take 
In  departing  from  the  station  platform,  and  undertakes  to  see  the 
engineer  of  the  train  on  private  business,  and  the  company  is  under 
no  duty  of  care  to  furnisli  him  a  safe  way  for  this  purpose.      Hen 

•  drick  V.  Railroad  Co.    (Mo.  Sup.)  38  S.  W.  2'.)~. 

sMcKimble  v.  Railroad,  141  Mass.  463,  .5  X.  E.  8i>4.  A  passengi-r 
does  not  forfeit  his  rights  as  such  by  leaving  the  train  at  a  pohit 
where  the  company  was  obliged  by  law  to  stop  before  oro.ssing  lii.' 
track  of  an  intersecting  road,  and  at  wliirh  iioiiit  llie  company  liad 
erected  a  iMiilding  and  ])l:iir(>nn  adaini-d  for  tlie  usi-  (if  passrngers. 
and  used  by  them  to  enter  its  trains,  as  well  as  l.y  iis  worUuu-u  at 
Its  shops  in  the  immediate  vi(  iniiy.  Id. 
>■•  Cincinnati,  I.,  St.  L.  &  C.  R.  Co.  v.  Cooper,  120  In.l.  ic,;i.  _-  N.  E. 

.  3-40. 

(<;o3) 


§  232  CARRIERS  OF  PASSENGERS.  (Ch.  16 

the  rights  of  one/  And  so  with  a  passenger  who  has 
reached  his  destination,  alighted  from  the  train,  and 
taken  a  position  on  the  sideAvalk  of  a  highway'/ 


§  232.  SAME— FAILURE  TO  LEAVE  TRAIN. 

The  severing  of  the  rehation  of  carrier  and  passenger 
is  not  necessarily  dependent  on  the  question  whether 
or  not  the  passenger  has  left  the  train.  One  who  re- 
mains after  a  reasonable  time  has  elapsed  for  him  to 
leave  the  car  at  his  destination  is  no  longer  a  passen- 
ger; and  a  reasonable  time  is  the  time  within  which 
persons  of  ordinary  prudence  and  care,  under  like  cir- 
cumstances, get  off  the  car.^  So,  one  who,  having  had 
a  reasonable  opportunity  to  leave  the  train  at  his  desti- 
nation, remains  for  the  unlawful  purpose  of  assaulting 
a  train  employe,  must  be  considered  as  having  aban- 
doned the  protection  afforded  him  by  his  contract.^ 

But  where  a  freight  train  stops  at  some  distance 


7  Cona.  V.  Railroad.  120  Mass.  '}()0. 

8  Allei-ton  V.  Railroad,  146  Mass.  241.  15  N.  E.  621. 

§  232.  1  Imhoff  v.  Railway  Co.,  20  Wis.  362.  One  who  has  had 
about  half  an  hour's  time  to  leave  the  train  at  destination,  which 
is  also  the  terminus  of  the  railroad,  can  no  longer  be  con.«idered  a 
passenger,  and  the  company  thereafter  owes  him  no  duty  as  such. 
Chicago,  K.  &  W.  R.  Co.  v.  Frazer.  r,.5  Kan.  .182.  40  Pac.  923. 

a  Chicago.  R.  I.  &•  T.  Ry.  Co.  x.  Barrett,  16  111.  App.  17.  One  who 
enters  a  railroad  station  in  the  evening  to  take  a  train,  and,  after 
finding  that  the  last  ti-ain  has  gone,  remains  therein  for  his  own  con- 
venience several  minutes  longer,  during  which  the  station  master, 
the  usual  closing  time  having  arrived,  puts  out  the  lights,  becomes 
at  most  a  mere  licensee,  and  cannot  recover  for  injuries  sustained, 
in  leaving  the  station,  by  reason  of  the  extinguishment  of  the  lights. 
Heinlein  v.  Railroad  Co.,  147  Mass.  136,  16  N.  E.  698. 
(004) 


Ch.    16)  Wno    ARE    PASSENGEltS.  §    2o3 

from  the  station  platform,  and  the  brakenian  assures  a 
passenger  about  to  alight  that  the  train  will  stop  at 
the  platform,  and  that  he  had  better  not  get  oft"  until 
then,  the  company  is  estoppetl  from  claiming  that  the 
passenger  is  in  fanlt  in  not  leaving  the  train  at  that 
time,  and  it  is  also  estopped  from  asserting  that  the  re- 
lation of  passenger  ceased  when  the  train  had  stopped 
long  enough  to  enable  the  passenger  to  leave  the  car.^ 

§  233.     SAME— STREET  CARS. 

One  who  steps  from  a  street  car  to  the  street  ceases 
to  be  a  passenger  when  he  alights.  The  street  is  in  n  > 
sense  a  passenger  station,  for  the  safety  of  whidi  th;' 
street  railway  is  responsible.  When  a  passenger  steps 
from  the  car  upon  the  street,  he  becomes  a  traveler  uji- 
on  the  highway,  and  terminates  his  relations  aud 
rights  as  a  passenger,  and  the  railway  company  is  not 
responsible  to  him  as  a  carrier  for  the  coudition  of  th«* 
street,  or  for  his  safe  passage  from  the  car  to  the  side- 

3  Eddy  V.  Wallfifp.  1  C.  C.  A.  435,  49  Fetl.  801.  PlaintilT.  travel- 
Inj?  in  charge  of  a  horse,  assumed,  by  a  contract  with  the  company, 
the  duty  of  carin,2:  for  it  wliile  in  transportation.  Tlic  car  cuntain- 
ing  the  horse  arrived  at  its  destination  about  2  a.  m..  and  was 
placed  on  a  side  trade.  PlaintiCf  left  it  for  a  few  minutes,  but  re- 
turned, and  lay  down.  He  was  subsequently  injured  in  a  collision 
bet^-een  a  locomotive  and  the  car.  Held  that,  th<.u«h  the  relation 
of  passenger  and  carrier  had  ceased,  and  though  tlie  degree  of  care 
owing  to  him  by  defendant  might  not  be  so  great,  yet.  if  prndfui 
attention  to  his  horse  rendered  it  proper  for  him  to  he  on  ilie  v.w. 
of  which  question  the  jury  was  the  judge,  he  was  riglil fully  thero. 
and  defendant  owed  him  the  duty  of  exercising  ordinary  ••are  to 
avoid  injuring  him.  Orcutt  v.  Railroad  Co.,  45  Minn.  :ti:s  17  N.  W. 
KK'iS. 

((105) 


§  234  CARRIERS  OF  PASSENGERS.  (Ch.  IG- 

walk/  Thus,  after  a  person  alij'lits  from  a  street  car, 
on  the  side  away  from  the  track,  in  a  place  of  safety, 
his  relation  as  a  passenger  ceases;  and  when  he  after- 
wards walks  around  the  rear  of  the  car,  and  attempts 
to  cross  a  parallel  track,  his  rights  are  only  those  of  a 
traveler  about  to  cross  a  public  street.^ 

V 

§  234.     SAME— PASSENGER    LEAVING    CONVEYANCE 
AT  INTERMEDIATE  STATION. 

"Whenever  performance  of  the  contract,  in  a  regular 
and  proj^er  way,  necessarily  involves  leaving  a  vehicle 
and  returning  to  it,  a  passenger  is  entitled  to  protec- 
tion as  such,  as  well  while  so  leaving  and  returning  a^ 
at  any  other  time.  *  *  *  To  determine  the  rights 
of  the  parties  in  every  case,  the  question  to  be  answered 
is,  what  shall  they  be  deemed  to  have  contemplated  by 
their  contract?  The  passenger,  without  losing  his^ 
rights  while  he  is  in  those  pla.ces  to  which  the  carrier's 
care  should  extend,  may  do  whatever  is  naturally  and 
ordinarily  incidental  to  his  passage.  *  *  *  Wher.^ 
one  engages  transportation  for  himself  by  a  convey- 
ance which  stops  from  time  to  time  along  his  route,  it 

§  233.     1  Creamer  v.   Railway  Co.,  156  Mass.  320,   31  N.    E.  391: 
Smitt  V.  Raihvay  Co.,  29  Or.  539,  46  Fac.  13G. 

2  Buzby  V.  Traction  Co.,  126  Pa.  St.  559,  17  Atl.  895.  See,  also, 
riatt  V.  Railroad  Co.,  2  Hun,  124.  But  in  Burbridge  v.  Railway  Co., 
36  Mo.  App.  GC9.  it  was  held  that  where  a  cable  railroad  has  a  rule 
,  in  force  that,  at  a  junction  point,  east-bound  trains  shall  clear  the 
.iunction  before  west-boimd  trains  shall  approach  on  a  parallel  track, 
one  who  leaves  an  east-bound  train  is  still  a  passenger,  in  so  far 
that  he  is  entitled  to  protection  against  the  negUgent  movement  of 
defendant's  trains  on  its  north  track,  while  he  is  crossing  it,  on  hl& 
way  to  the  sidewalk. 
(606) 


Cll.    16)  AYHO    ARE    PASSENGERS.  §    234 

iniiy  well  be  implied,  in  tlie  absence  of  anything;  to  the 
contrary,  that  he  has  permission  to  alif;ht  for  his  own 
convenience  at  any  reiiiilar  stoi)]»in,u-  phu-c  fitr  passen- 
gers, so  long  as  he  properly  regards  all  the  carrier's 
rules  and  regulations,  and  provided  that  his  doing  so 
does  not  interfere  Avith  the  carrier  in  i  he  performance 
of  his  duties."  ^  Thus  a  passenger  does  not  cease  to  be 
such  while  going  to  and  returning  from  a  ])lace  of  re- 
freshment at  a  station  where  the  train  has  stopped  for 
the  purpose  of  enabling  passengers  to  jtaitake  of  a 
meal.-  So  one  who  must  necessarily  change  cars  to  ar 
rive  at  his  destination,  and  must  pass  over  tne  inter 
vening  track  of  the  carrier  in  crossing  from  one  train 
to  another,  continues  to  be  a  passenger,  and  is  entitle! 
to  the  degree  of  care  that  the  carrier  owes  passengei-s. ' 
So,  where  the  progress  of  a  passenger  train  is  obstruct- 
ed by  a  wreck  of  a  freight  train,  and  the  passengers  ai-e 
transferred  to  the  other  side  of  the  wreck  to  await  an- 
other train,  the  passengers,  while  so  waiting,  are  still 
passengers,  and  are  entitled  to  all  the  rights  of  passeu 
gers.* 

Even  where  a  passenger  leaves  a  train  at  an  iiitcniie- 
diate  station  to  speak  to  some  one  on  the  platform,  the 

§  2.34.  1  Dodge  v.  Steamship  Co.,  148  Mass.  207.  10  N.  K.  ."iT."..  A 
passenger  on  a  railroad  train  does  not  lose  his  character  as  such  by 
alighting  from  the  cars  at  a  regiilar  station  from  motives  of  either 
business  or  curiosity,  although  he  lias  not  yet  arrived  at  tlie  tenninns 
of  the  journey.  Parsons  v.  Railroad  Co.,  113  N.  Y.  .'{.Vi,  21  N.  K. 
145;    Id.,  37  Hun.  128. 

2  .Teffersonville,  .M.  i^-  I.  R.  Co.  v.  Riley,  30  Ind.  .'>(i8;  Atchison,  T. 
&  S.  F.  R.  Co.  V.  Shean,  18  Colo.  308,  33  Pac.  1(»8. 

."■  Baltimoie  &  O.  R.  Co.  v.  State.  (iO  Md.  44!t. 

«  Conroy  v.  Railway  Co.  (Wis.)  70  N.  W.  48li. 

((•,07) 


;§  234  CARRIERS  OP  PASSENGERS.  (Clj.  IG 

railroad  company  must  exercise  ordinary  care  to  en- 
able liim  to  board  the  train  in  safety.^  In  the  case  of 
passengers  on  vessels,  the  rule  seems  to  be  very  liberal. 
It  has  been  held  that  a  passenger  for  hire,  traveling  on 
a  vessel,  has  a  right  to  go  ashore  at  an  intermediate 
landing  place,  even  for  the  purpose  of  buying  tobacco,*' 
without  forfeiting  his  rights  as  a  passenger  to  safe 
egress  and  ingress/  So  a  passenger  on  a  steamer  may 
properly  go  on  shore  to  get  his  breakfast  at  an  interme- 
<liate  point,  where  the  steamer  stops  for  an  hour, 
though  meals  are  served  on  the  steamer;  and  he  has  a 
passenger's  right  of  protection  during  his  egress  from 
the  steamer.^ 

In  Maine  and  Minnesota,  however,  a  different  rule 
seems  to  prevail.  In  these  states  it  is  held  that  where 
a  passenger  enters  a  railway  train,  and  pays  the  regu- 
lar fare  to  be  transported  from  one  station  to  another, 
his  contract  does  not  obligate  the  corporation  to  fur- 
nish him  with  safe  egress  and  ingress  at  any  intermedi- 
ate, station.  And  where  such  train  turns  out  upon  a 
side  track  at  an  intermediate  station,  and  there  stops  to 
await  the  crossing  of  another  train  out  of  time,  and  the 
passenger,  not  destined  to  that  station,  without  objec- 

5  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Cooper,  2  Tex.  Civ.  App.  42,  20 
S.  W.  990. 

G  Hrebrik  v.  Carr.  29  Fed.  298. 

•!■  Dice  V.  Willamette,  T.  &  S.  Co..  8  Or.  60.  A  pas.«enger  on  a 
steamboat  is  nnder  no  obligation  to  remain  on  tlie  boat  until  it 
reaches  his  destination;  and  if  he  is  injured  through  the  negligence 
of  the  steamer's  servants,  while  leaving  the  boat  at  an  intermediate 
point,  where  it  stopped  for  two  hours,  the  steamboat  owners  are 
liable.     Keokuk  X.  L.  P.  Co.  v.  True,  88  111.  G08. 

e  Dodge  v.  Steamship  Co.,  148  Mass.  207,  19  N.  E.  .373. 
(608) 


Ch.    15)  WHO    ARE    PASSENGEItS.  §    234 

tion  made  or  notice  given,  leaves  the  car,  he  thereby 
does  no  illei;al  act,  but  for  the  time  surrenders  his  place 
as  a  passenjier,  and  takes  upon  himself  the  direction 
and  responsibility  of  his  own  motions  during  his  ab- 
sence, and  the  carrier  is  not  liable  for  injuries  he  sus- 
tains by  being  struck  by  a  train  on  the  main  track 
while  crossing  it  on  his  way  to  his  train.'' 

Unquestionably,  a  passenger  who  leaves  the  train  at 
an  intermediate  station  ceases  to  be  such  on  leaving  the 
station,  and  the  relation  is  not  restored  by  his  subse- 
quently returning  to  the  station,  not  for  the  purpose  of 
resuming  his  journey.^'' 

0  state  V.  Railway  Co.,  5.S  Me.  176;    De  Kay  v.  Railway  Co..  41 
Minn.  78,  43  N.  W.  182. 
10  Johnson  v.  Railroad,  125  Mass.  75. 

V.  1  FET.CAR.PAS. 39  (609) 


§  2o5  CARRIERS  OF  PASSENGERS.  (^Cij.  17 


CHAPTER  XVII. 

DUTY  TO  GRATUITOUS  PASSENGERS  AND  PERSONS  NOT 

PASSENGERS. 

§  235.  Duty  to  Gratuitous  Passengers, 

236.  Duty  to  Invited  Persons,  Licensees,  and  Trespassers. 

237.  Same — Escorts  of  Passengers. 

238.  Same — Persons  Having  Business  at  Stations. 

239.  Same— Licensees  at  Stations. 

240.  Same— Trespassers  on  Trains. 

241.  Same— Trespassing  Children. 

§  235.     DUTY  TO  GRATUITOUS  PASSENGERS. 

A  common  carrier  o^wes  the  same  degree  of  care  to 
a  gratuitous  passenger  as  to  a  passenger  pay- 
ing fare,  in  the  absence  of  a  contract  to  the 
contrary. 

The  leading  case  on  this  subject  is  Philadelphia  & 
R.  E.  Co.  V.  Derby, ^  decided  by  the  supreme  court  of  the 
United  States  in  1852.  In  that  ease  it  was  held  that 
the  fax't  that  a  stockholder  of  a  railroad  company  is  be- 
ing carried  on  a  special  car  as  the  invited  guest  of  the 
president  of  the  road,  without  payment  of  fare,  does 
not  relieve  the  comi)an3^  of  the  duty  of  exercising  due 
care  for  his  safety.  The  court  said  that  the  duty  to 
carry  safeh^  does  not  result  alone  from  the  considera- 
tion paid  for  the  service,  but  it  is  imposed  by  law,  even 
where  the  service  is  gratuitous.  "The  confidence  in- 
duced by  undertaking  any  service  for  another  is  a  suf- 

§  23.5.     ^  14  How.  4(;S. 
(010) 


Ch.    17)  TO    WHOM    LIABLE    AS    PASSENGERS.  §    235 

ficient  legal  consideration  to  create  a  duty  in  the  per- 
formance of  it.''  And,  whether  the  consideration  for 
the  transportation  be  pecuniary  or  otherwise,  the  per- 
sonal safety  of  passengers  should  not  be  left  to  the 
sport  of  chance  or  careless  agents.  This  case  has  been 
followed,  and  the  principle  stilted  in  the  black-letter 
text  has  been  reiterated,  in  numerous  cases  since.  = 

In  Kansas,  however,  it  is  held  that  a  railroad  com- 
pany does  not  owe  to  a  person  riding  on  one  of  its  trains 
without  payment  of  fare,  merely  by  sufferance  of  the 
conductor,  that  high  and  extraordinary  degree  of  care 
for  his  personal  safety  that  is  due  to  an  ordinary  pas- 
senger paying  the  customary  fare,  but  is  liable  only  for 
ordinary  negligence..^ 

2  The  New  World  v.  King.  16  How.  469;    Ohio  &  M.  R.  Ck).  v.  Muhl- 
ing,  30  111.  9;    Rice  v.  Raih-oad  Co.,  22  111.  App.  643;   Rose  v.  Rail- 
road Co.,  39  Iowa,  240;    Hoar  v.  Railroad  Co.,  70  Me.  65;    State  v. 
Railroad  Co.,  63  Md.  433;    Todd  v.  Railroad  Co.,  3  Allen  (Mass.)  18: 
Jacobus  V.  Railway  Co.,  20  Minn.  125  (Gil.  110);    Hurt  v.  Railroad 
Co.,  40  Miss.  391;    Lemon  v.  Chanslor,  68  Mo.  340;    Perkins  v.  Rail- 
road  Co.,  24  N.  Y.   196;    Xollon   v.  Raih'oad  Corp.,   15  N.   Y.   444; 
rrince  v.  Railway  Co.,  64  Tex.  144.     A  railroad  company  owes  at 
least  the  duty  of  ordinary  care  towards  one  riding  in  the  caboose  of 
a  freight  train  with  the  consent  of  the  conductor,  though   he  has 
paid  no  fare.     Whiteliead  v.  Railway  Co.,  99  Mo.  2G4.  11  S.  W.  751. 
Children  riding  free,  by  reason  of  their  youth,  with  their  father  on 
a  passenger  train,  are  passengers.     Littlejohn  v.  Railn.ad   Co..  14S 
ilass.  478,  20  N.  E.  103. 

8  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Berry,  53  Kan.  112.  36  Tac. 
5:i  One  who  rides  on  a  construction  train,  willi  th.-  cms.-ut  ..1  the 
conductor,  without  paying  fare,  is  neither  a  j.assenger  nor  a  tres- 
passer, but  he  is  rightfully  there,  and  the  company  must  oxorcse 
ordinary  care  for  his  safety.  S^t.  Joseph  &  W.  K.  Co.  v.  Wheeler. 
35  Kan  185,  10  Pac.  461.  A  little  girl,  less  than  live  years  ol.l. 
placed  on  a  passenger  train,  without  payment  of  fare.  :u..l   not  in 

(<>n) 


§  235  CARRIERS  OF  PASSENGERS.  (Ch.  17 

Sometimes,  however,  it  is  difficult  to  distinguisli  a 
gratuitous  passenger  from  a  trespasser,  especially  in 
the  cases  of  children  riding  free  on  street  cars.  The 
true  rule  would  seem  to  be  that  a  child  who  rides  on  a 
street  car  with  the  knowledge  and  permission  of  the 
person  in  charge,  and  without  any  intention  to  evade 
payment  of  fare,  is  a  passenger,  and  not  a  trespasser, 
though  he  has  paid  no  fare.*  If  tliere  is  no  conductor 
on  the  car,  the  driver's  consent  or  invitation  will  make 
a  child  so  riding  a  passenger;  °  but  where  there  is  a 
conductor,  and  the  driver  is  charged  merely  w^ith  the 
duty  of  driving  the  team,  mere  knowledge  of  the  driver 
of  a  boy's  presence  on  the  car,  and  his  failure  to  make 

the  custody  of  any  person,  is  not  a  passenger,  and  the  company 
need  exercise  only  ordinary  care  for  her  safety.  Atcliison  &  N.  R. 
Co.  V.  Flinn,  24  Kau.  447.  These  cases  do  not  seem  to  be  correctly 
decided.  If  the  conductor  of  a  train  has  authority,  either  real  or  ap- 
parent, to  receive  passengers  on  his  train  without  payment  of  fare, 
then  such  persons  are  passengers,  and  entitled  to  all  the  rights  of 
passengers.  If  the  conductor  has  no  such  authority,  then  a  person 
■riding  free  would  seem  to  be  engaged  in  an  attempt  to  evade  pay- 
iment  of  fare,  with  the  connivance  of  the  conductor,  and  the  carrier 
is  under  no  duty  to  exercise  care  for  his  safety. 

4  Muehlhausen  v.  Railroad  Co.,  91  Mo.  332,  2  S.  W.  315. 

6  Wilton  V.  Railroad  Co.,  107  Mass.  108,  125  Mass.  130;  Metropoli- 
tan St.  Ry.  Co.  V.  Moore,  S3  Ga.  4.53,  10  S.  E.  730.  Since  it  is  within 
the  scope  of  the  authority  of  the  conductor  and  driver  of  a  street  car 
to  receive  passengers  and  let  them  off,  the  act  of  the  driver  in  per- 
mitting a  boy  to  ride  free  ou  the  car  is  binding  on  the  company,  and 
the  boy  is  a  passenger,  and  not  a  trespasser.  Brennan  v.  Railroad 
Co.,  45  Conn.  284.  A  small  boy  riding  on  a  street  car,  free  of  charge, 
with  the  consent  of  the  driver,  is  a  passenger,  and  entitled  to  pro- 
tection as  such.  Buck  v.  Power  Co.,  108  Mo.  179,  18  S.  W.  1090. 
Such  a  child  is  not  a  trespasser,  and  tlie  company  owes  him  the  duty 
of  exercising  care  for  his  safety.  Evansville  St.  Ry.  Co.  y.  Meadows. 
13  Ind.  App.  1.55,  41  X.  E.  398. 
(G12) 


Ch.    17)  TO    WHOM    LIABLE    AS    PASSENGERS.  §    2o6- 

any  demand  for  fare,  or  to  take  any  measures  to  ascor- 
tain  whether  the  boy  intended  to  pay  fare,  are  not  an 
assent  to  the  boy's  riding-  free  of  charge,  so  as  to  change 
his  relation  from  a  trespasser  stealing  a  ride  to  that  of 
a  gratiiitons  passenger.^ 

§  236.     DUTY     TO     INVITED     PERSONS,    LICENSEES^ 

AND  TRESPASSERS. 

The  owner  or  occupant  of  real  estate  owes  a  dutjr 
of  exercising  care  towards  a  person  who  comes 
on  his  premises  by  invitation,  either  express  or 
implied;  but,  as  to  a  licensee  or  a  trespasser, 
he  is  under  no  such  duty,  but  only  under  the 
duty  of  abstaining  from  willful  and  wanton  in- 
jury as  to  trespassers,  and,  in  ad'dition,  of  giv- 
ing a  licensee  notice  of  hidden  dangers  or  traps. 

The  distinction  between  the  duty  owing  to  a  licensee 
and  a  trespasser  is  comparatively  unimportant  in  tlie 
class  of  cases  with  which  we  have  to  deal.      The  inijxjr- 
tant  question  is.  Towards  what  persons  coming  oniti* 
premises  is  a  railroad  company  under  the  duty  of  exer- 
cising care?    Now,it  is  agreed  on  all  hands  that  there  is 
a  wide  differem  e  between  the  obligation  which  a  p  rso.i 
or  corporation  owes  to  a  mere  licensee,  and  the  duty- 
which  the  same  person  or  corporation  owes  to  one  who. 
conies  upon  his  premises  by  an  invitation,  either  ex- 
press or  implied.     In  the  first  case,  it  is  geiuM-ally  ad 
mitted  that  the  licensee  comes  at  his  own  risk,  and  en 
joys  the  license  subject  to  its  concomitant  risks  or  per 

e  Wynn  v.  Itaihvay  Co.,  91  Ga.  344,  17  S.  E.  G49. 


§  236  CARRIERS  OF  PASSENGERS.  (Ch.  17 

ils,  and  that  in  such  case  no  duty  is  imposed  upon  the 
owner  or  occupant  to  keep  the  premises  in  safe  and 
suitable  condition  for  his  use.  In  other  words,  the 
licensee  takes  the  premises  as  he  finds  them.  But 
where  the  owner,  directly  or  indirectly,  induces  or  in- 
vites persons  to  enter  and  pass  over  his  premises,  he 
thereby  assumes  an  obligation  that  they  are  in  a  safe 
condition  and  suitable  for  such  use;  and,  if  a  person  be 
injured  by  his  breach  of  such  obligation,  the  owner  is 
liable  therefor  in  damages/ 

All  the  property  of  a  railroad  company,  including  its 
depot  and  adjacent  yards,  are  private  property,  on 
which  no  one  is  invited,  or  can  claim  the  right  to  enter, 
save  those  who  have  business  with  the  railroad.  As  to 
this  class  of  persons,  the  railroad  company  is  bound  to 
exercise  care  in  the  construction  and  maintenance  of 
all  portions  of  its  platforms  and  approaches,  station 
grounds,  and  waiting  rooms  to  which  the  public  do  or 
would  naturally  resort.  But  the  rule  of  obligation  is 
essentially  different  when  the  asserted  rights  of  mere 
idlers  or  sightseers  are  presented.  To  such  the  corpo: 
ration  owes  nothing  beyond  the  observance  of  the  du- 
ties of  good  neighborhood.  Among  these  may  be  prom- 
inently classed  the  universal  duty  of  doing  no  willful 
or  wanton  injury,  and  of  erecting  or  continuing  no  nui- 
sance, trap,  or  pitfall  from  which  personal  injury  is 
likely  to  ensue.' 

§  236.     1  Nichols'  Adm'r  v.  Railroad  Co.,  83  Va.  99,  5  S.  E.   171; 
Indiana,  B.  &  W.  Ry.  Co.  v.  Barnliart,  115  Ind.  400,  408,  16  N.  E.  121. 
«  Montgomery  &  B.  R.  Co.  v.  Thompson,  77  Ala,  448. 
(614) 


Ch.   17)  TO   WHOM    LIABLE    AS    PASSENGERS.  §    -Ot 

§  237.     SAME-ESCORTS  OF  PASSENGERS. 

One  who  escorts  a  passenger  to  a  station  or  t..  a  s«nit 
in  a  train  is  not  a  mere  trespasser,  to  whom  the  coiii- 
panv  owes  no  duty  except  to  abstain  from  willful  inju- 
ries; nor,  on  the  other  hand,  is  he  a  passenger  towards 
whom  the  company  is  bound  to  the  exercise  of  the  high- 
est  degree  of  care  and  skill;  but  he  is  on  the  company's 
premises  on  its  implied  invitation,  and  it  is  bound' to 
exercise  ordinai-y  care  for  his  safety/     This  impbod  in 

I  237      1  Little  Rock  &  Ft.  S.  R.  Co.  v.  Lawton,  55  Ark.  4-JS^  IS 
S  W   543;    Cherokee  Packet  Co.  v.  Hilson.  95  Teun.  1,  31  S.  ^^^  .3.; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Miller,  8  Tex.  Civ.  App   241,  2.  S.  VV^ 
905;    Hamilton  v.  Railway  Co.,  G4  Tex.  251.     This  rule  also  pnna.l.s 
in  Canada  and  in  New  South  Wales.     York  v.  Ca,Kul..  .c  A.  b^  Co 
22  Can.  Sup.  Ct.  167;    Trice  v.  Xavigahoz.  Co     L.  R.  5  N.  S.  ^a.e 
137      But  in  Watkins  v.  Railway  Co.  (187.)  46  Law  J.  C.  P.  81..  .t 
was  said  that  the  duty  of  a  railway  company  towards  those  who  >n 
practice  they  allow  to  aeco..pany  passengers,  in  order  to  see  tho.n 
off  bv  ti-ams,  without  asking  special  permission,  is  "ot    -vor  H.an 
towaMs  those  whom  they  accompany.     So,  in  Evansvdle  &         H 
K    CO    V.  Athon,  6  Ind.  App.  205,  33  N.  E.  469,  it  was  sa.d  that  a 
father  who  assists  his  invalid  daughter  on  a  train  is  a  pa.s.^ng.. 
whi^e  so  assisting  and  departing.     In  Xew  .ork,  C.  &  St.  L.  R  Co 
V    Mushrush,  11  Ind.  App.  192.  37  N.  K.  9..4.  and  liS  N.  E.  8.1    U 
is  said  that  the  duty  of  a  railroa.l  company  to  keep  its  ^t'^t.on  p  a  - 
form  in  a  reasonably  safe  condition  extends  to  tho.^e  who  co  >e    o 
meet  friends,  or  welcome  the  coming  or  speed  the  parfng  guo.t.     In 
"  nin  V.  Board  of  Land  and  Works,  6  Vict.  Law  Rop.  31...  u  was 
^d^hat  railway  proprietors  owe  a  duty  to  friends  of  a  passenger, 
going  to  a  station  to  receive  hin.  to  pn.t.ct  tl-.en.  from  -;>"-«■ 
!us  place  not  only  in  the  way  provid.nl  for  access  to  the  sta  ion.  bnt 
alsoranV  other  way  of  access  allowcl  to  be  .onunon.y  us.d  by  per- 
^^resoriing  to  th.  station.     One  not  a  friend  .   an  i.-.n.n^^^^^^^^ 
senger,  but  accompanying  friends  go.ng  tu  nu.-t   Inn..  1>  u..nl..l 

the  same  protection. 

(t.l.>) 


§  237  CARRIERS  OF  PASSENGERS.  (Ch.  17 

vitation  and  consequent  duty  to  tliose  who  go  to  wel- 
come the  coming  or  speed  the  parting  guest  is  founded 
on  the  amenities  and  social  observances  which  are  an 
inseparable  concomitant  of  modern  railway  and  pas 
senger  traffic. 

The  duty  to  exercise  ordinary  care  extends  to  one 
who,  having  an  appointment  with  a  passenger,  enter.5 
the  company's  premises  intending,  in  case  the  appoint- 
ment is  met,  to  become  a  passenger  himself.^  So,  a  no- 
tice forbidding  all  persons  not  having  business  with  tli  ^ 
railroad  company  from  entering  its  cars  does  not  apply 
to  one  who  escorts  a  female  passenger  to  a  seat  on  the 
train.  ^ 

But  the  rule  that  it  is  the  duty  of  a  railway  company 
to  exercise  ordinary  care  for  the  safety  of  persons  ac- 
companying an  intending  passenger,  who  is  about  to 
take  a  train  in  the  course  of  regular  passenger  traffic, 
does  not  extend  to  one  who,  in  the  nighttime,  goes  on 
the  freight  platform  to  accompany  a  person  who  is 
about  to  leave  on  a  train  in  charge  of  live  stock.  "A 
railway  company  has  a  right  to  expect  that  an  arriving 
passenger  or  an  intending  one  may  be  met  or  accompa- 
nied by  friends,  and  so  it  may  be  said  that,  in  virtue  of 
the  relation  between  the  passenger  and  the  company, 
there  is  an  implied  invitation  in  their  case,  and  that  it 
owes  them  a  corresponding  duty.      Not  so,  however,  in 

2  Texas  &  P.  Ry.  Co.  v.  Best.  66  Tex.  116,  18  S.  W.  224. 

3  Little  Rock  &  Ft.  S.  Ry.  CJo.  v.  Lawton,  55  Ark.  428,  18  S.  W.  543. 
But,  if  railway  employes  offer  to  assist  a  woman  to  a  seat,  lier 
escort  has  no  right  to  enter  the  coach  for  that  purpose,  and  the  rail- 
way company  owes  him  no  duty,  except  to  refrain  from  willful  anti 
wanton  injury.     Id. 

(016) 


Ch.    17)  TO    WHOM    LIABLE    AS    PASSENGERS.  §    2^7 

the  exceptional  case,  in  freiuht  traffic,  where  hidies,  «n- 
others  even,  attend  one  who  is  about  to  leave  in  a 
freight  car,  riding  in  charge  of  live  stock, — one  who 
cannot  be  said  to  be  a  passenger  except  in  a  very  lim- 
ited and  restricted  sense."  * 

So,  also,  the  rule  that  trains  must  be  stopju'd  a  r(»a- 
sonable  length  of  time  for  all  passengers  who  desire  to 
stop  at  the  station  to  get  on  and  oif  does  not  api>l.v  t.* 
one  going  on  the  train  to  escort  a  departing  passenger 
to  a  seat,  unless  the  company  knows  that  he  is  merely 
an  escort,  and  does  not  intend  to  bectune  a  passenger.' 

4  Dowd  V.  Railway  Co.,  84  Wis.  105.  54  N.  W.  24.  Wlieie  a  pas- 
senger train  stops  temporarily  several  hundred  yards  from  tin-  (h'pot. 
because  its  way  is  obstructed  by  a  freight  train,  one  who  Icaws  ihr 
depot,  and  gets  on  the  passenger  train,  for  the  purpose  of  niecting 
his  wife  and  child,  is  not  a  passenger,  and  cannot  recover  for  inju- 
ries sustained  by  falling  into  a  culvert  while  stepping  from  the  train. 
Stiles  V.  Railroad,  65  Ga.  370. 

5  Lucas  V.  Raih-oad  Co.,  6  Gray  (Mass.)  64;  Coleman  v.  Railroail 
Co.,  84  Ga.  1,  10  S.  E.  498;  Griswold  v.  Railway  Co..  64  Wis.  652. 
26  N.  W.  101;  Missouri,  K.  &  T.  Ry.  Co.  v.  Miller.  8  Tex.  Civ.  App. 
241,  27  S.  W.  905;  Texas  &  T.  Ry.  Co.  v.  Mcciilvary  (Tex.  Civ.  App.) 
29  S.  W\  67;  Dillingham  v.  Pierce  (Tex.  Civ.  App.)  31  S.  W.  2(>:'.. 
The  mere  fact  that  a  train  fails  to  stop  tlie  usual  and  reasonable 
time  to  enable  passengers  to  get  on  and  off  does  not  constitute  neg- 
ligence as  to  a  person  who  gets  on  to  assist  a  passenger,  and  who  is 
injured  in  getting  off  after  the  train  has  started.  International  & 
G.  X.  R.  Co.  V.  Satterwhitf  (Tex.  Civ.  App.)  38  S.  W^  401.  It  seems 
to  have  been  held  at  one  time  in  Missouri  that  an  escort  of  a  pas- 
senger is  entitled  to  have  sufficient  time  to  accompany  the  passenger 
to  a  seat,  and  then  to  leave  the  car.  Doss  v.  Railroad  Co.  (1875) 
59  Mo.  27;  Stoneseifer  v.  Sheble,  31  Mo.  243.  But  those  cases  would 
seem  to  be  overruled  by  Yarnell  v.  Railway  Co.,  113  Mo.  570,  21  S. 
W.  1,  where  it  was  held  that  a  railroad  company  dues  not  owe  a 
duty  to  afford  a  reasonable  opportunity  to  alight  to  a  person  escort- 
ing a  pas.senger  on  a  train,  unless  it  has  knowledge  of  the  fact  thai 

.617) 


§  237  CARRIERS  OF  PASSENGERS.  (Ch.  17 

The  duty  to  afford  such  an  escort  a  reasonable  oppor- 
tunity to  leave  the  train  is  dependent  upon  the  knowl- 
edge of  his  purpose  by  those  in  charge  of  the  train;  for, 
without  such  knowledge,  they  may  reasonably  con- 
clude that  he  entered  to  become  a  passenger,  and  may 
cause  the  train  to  be  moved  after  allowing  him  a  rea- 
sonable time  to  get  on  board.  The  law  could  not,  in 
reason  and  justice,  impose  as  a  duty  the  doing  of  that 
which,  in  the  light  of  everything  known  to  the  train- 
men, would  not  appear  necessary  or  proper,  nor  hold 
that  the  cars  should  be  stopped  when  there  is  no  reason 
to  stop  them.®  But  when  a  person  is  permitted,  with- 
out objection,  to  enter  a  car  in  a  railway  train,  at  a  sta- 
tion, to  assist  a  passenger  to  a  seat,  and  before  entering 
he  states  to  the  conductor  that  he  intends  to  get  off,  it  is 
the  duty  of  the  conductor  to  so  regulate  the  movement 
of  the  train  as  to  give  him  a  reasonable  time  to  leave 
the  car  without  injury.^  So,  where  a  passenger  is  in 
so  enfeebled  a  condition  as  to  require  the  assistance  of 
others  to  carry  him  on  the  train,  the  train  hands,  who 
observe  these  facts,  owe  an  obligation  to  those  assisting 
and  carr^^ing  him  into  tlie  car  to  stop  the  train  a  suffi- 
cient length  of  time  to  give  them  a  reasonable  oppor- 

he  is  merely  an  escort,  and  does  not  intend  to  become  a  passenger. 
In  Keoknli  Pac-liet  Co.  v.  Henrj-.  50  111.  264,  it  was  held  that  there 
is  no  presumption  that  persons  going  aboard  a  steamboat  at  a  regu- 
lar stopping  place  do  so  with  tlie  intention  of  becoming  passengers, 
BO  as  to  relieve  the  company  from  the  duty  of  giving  to  a  person 
accompanying  a  female  passenger  on  the  boat  proper  tune  and  facili- 
ties to  get  ashore. 

6  Little  Hock  &  Ft.  S.  Ry.  Co.  v.   Lawton.  5.5  Ark.  428.   18  S.  W. 
C43. 

7  Missouri.  K.  &  T.  R.  Co.  v.  Miller  (Tex.  Civ.  App.)  39  S.  W.  583. 

(618) 


€h.    17)  TO    WHOM    MABLK    AS    PASSEXOERS.  §    238 

tiiiiitj  to  leave.'  So,  where  a  conductor  of  a  street  car 
is  informed  that  a  person  boarding  the  car  with  another 
is  not  a  passenger,  and  he  sees  such  person  turn,  and 
start  to  leave  the  car,  it  is  a  question  for  the  jury  wh  tli 
er  he  was  guilty  of  negligence  in  starting  the  car  be- 
fore she  got  off.* 

§  238.     SAME— PERSONS  HAVING  BUSINESS  AT 

STATIONS. 

It  is  the  duty  of  a  railroad  company  to  exercise  ordi- 
nary care  to  keep  its  station  houses  and  platforms  in  a 
safe  condition,  and  to  furnish  safe  and  easv  ingress  and 
egress  to  and  from  them  for  the  benefit  of  all  persons 
who  have  business  at  such  station  houses.^     This  duty 

8  Louisville  &  N.  R.  Co.  v.  Crunk,  119  Ind.  542,  549,  21  N.  E.  31. 

9  Rett  V.  Railroad  Co.  (Super.  N.  Y.)  1  N.  Y.  .Supp.  518.  The  fact  that 
a  person  who  attended  a  child  in  boarding  a  street  car  on  a  particu- 
lar occasion,  for  the  purpose  of  placing  in  the  car  small  packages 
which  the  child  was  to  have  in  charge,  had  frequently  before  done 
the  same  thing  at  the  same  place  when  the  same  driver  was  in 
charge,  Is  admissible  in  evidence,  as  tending  to  show  that  the  per- 
son on  this  particular  occasion  intended  to  get  off  after  depositing 
the  packages,  as  she  had  done  on  previous  occasions,  and  did  not  in- 
tend to  remain  on  board,  so  as  to  justify  the  driver  in  starting  the 
oar  suddenly  while  she  was  engaged  in  getting  off.  Houston  v.  Rail- 
road Co.,  89  Ga.  272,  15  S.  E.  .323. 

§  2.38.  1  St.  Louis,  I.  M.  &  .S.  Ry.  Co.  v.  Fairbairii,  4.S  Arli.  VM. 
4  S.  W.  .50.  There  is  no  doubt  that  a  higher  degree  of  care  and  dili- 
gence is  required  towards  a  passenger  than  towards  a  stranger  right- 
fully on  the  premises  of  a  railroail  company.  In  the  former  case, 
the  utmost  care  and  skill  are  required:  in  tlie  other,  only  such  dill 
gence  as  would  be  exercised  by  piudciit,  skillful,  and  iliscreet  men. 
having  due  regard  to  the  ilglits  and  demands  of  llie  public,  and  a 
proper  desire  to  protect  life  and  property.  Illinois  Cent.  R.  Co.  v. 
Phillip.s,  55  111.  194. 


§  238  CARRIERS  OF  PASSENGERS.       .      (Ch.  17 

it  owes  to  a  person  who  goes  to  a  station  to  mail  a  letter 
on  a  mail  train,-  or  to  ijrocure  a  time-table  to  see  wheth- 
er there  has  been  a  change  in  the  running  time  of 
trains;  ^  to  a  hackman  conveying  a  passenger  to  a  depot 
for  transportation;  *  and  to  a  consignee  of  goods  who 
goes  on  its  premises  to  assist  in  the  delivery  of  his 
goods,  with  its  consent.  ^  So,  where  the  direct  and  usual 
path  to  a  railroad  company's  depot  lies  over  a  side  track 
on  which  freight  cars  often  stand,  and  it  is  the  custom 
of  the  comjiany  to  leave  an  opening  between  them, so  as 
not  to  obstruct  the  path,  and  this  path  is  habitually 

2  Hale  V.  Railroad,  GO  Vt.  G05.  15  Atl.  300.  But  in  Spence  v.  Rail- 
way Co.  (1896)  27  Ont.  303,  it  was  held  that  one  who  goes  on  the  prem- 
ises of  a  railwaj'  company  to  post  a  letter  in  the  postal  car  of  a  train 
is  a  bare  licensee,  who  goes  on  the  premises  solely  for  his  own  use, 
without  any  reciprocal  advantage  to  the  railway  co.npany;  and  hence 
the  company  is  not  liable  to  him  for  injuries  sustained  because  of  a 
defect  in  its  premises,  unless  in  the  nature  of  a  trap. 

3  Bradford  v.  Railroad,  160  Mass.  392,  35  N.  E.  1131. 

4  Tobin  V.  Railroad  Co.,  59  Me.  183. 

c  Holmes  v.  Railway  Co.,  L.  R.  4  Exch.  2.!)4,  L.  R,  6  Exch.  123.  Nor 
is  a  consignee  sk3  assisting  in  the  delivery  of  his  goods  a  servant  of 
the  carrier,  within  the  fellow-servant  rule.  Wright  v.  Railway  Co., 
L.  R.  10  Q.  B.  298,  1  Q.  B.  Div.  252.  But  under  Act  Pa.  April  4, 
1868.  which  provides  that  any  person  injured  while  lawfully  engaged 
or  employed  on  or  about  the  premises  or  cars  of  a  railway  company 
of  which  he  is  not  an  employe  shall  have  the  same  rights  as  an  em- 
ploye, a  consignee  who  goes  to  a  railroad  depot  to  receive  his  goods 
takes  the  risk  upon  himself.  Gerard  v.  Railroad  Co.,  12  Phila.  394. 
A  Sitock  owner,  or  a  friend  or  agent  for  him,  may  rightfully  go  upon 
the  platform  at  a  railroad  station  to  examine  a  notice  of  killing  stock 
by  trains,  which  the  statute  requires  to  be  posted  there;  and  if,  in 
the  exercise  of  ordinary  care,  he  is  injured  from  a  defect  in  the  plat 
form  which  could  have  been  avoided  by  ordinary  care  ot  the  com- 
pany, he  may  recover  for  the  injury.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Fairbairu,  48  Ark.  491,  4  S.  W.  50. 


Ch.    17)  TO    WHOM    LIABLE    AS    PASSENGERS.  §    239 

used  by  the  patrons  and  employes  of  the  company, 
with  the  knowledge  and  withont  the  disapproval  of  the 
officials,  it  may  be  assumed  that  the  company  invites 
persons  having  business  at  the  depot  to  use  tliat  i)ath 
between  the  cars;  and  if,  by  a  sudden,  unsignaled  art 
of  the  company's  servants,  the  cars  are  run  together, 
thereby  crushing  a  person  who  was  on  his  way  to  Ww 
depot,  the  company  is  liable  in  damages  for  the  injury." 

§  239.     SAME— LICENSEES  AT  STATIONS. 

One  who  goes  to  the  station  house  of  a  railroad  com- 
pany, not  for  the  purpose  of  any  business,  or  to  meet 
expected  friends,  or  to  see  others  depart,  but  as  a  mere 
spectator,  for  his  own  pleasure  and  convenience,  is 
there  at  his  own  risk  and  peril,  and  cann  t  recover  dam- 
ages for  personal  injuries  received  in  consequence  of  a 
defective  platform  or  station  grounds.  To  entitle  such 
a  person  to  recover,  he  must  show  such  gross  and  wan- 
ton negligence  on  the  part  of  the  company  as  is  equiva- 
lent to  intentional  mischief.^  Within  this  class  is  in- 
cluded a  person  who  goes  to  a  station  for  shelter  from 
a  storm;  -  one  who  goes  to  a  telegraph  ottice,  not  a 
station,  maintained  by  a  railroad  company  near  its 
track,  to  pay  the  operator  a  friendly  visit;  ^  one  w  li<» 
goes  on  the  land  of  a  railroad  company,  near  a  iiiMil 
crane,  to  witness  a  catch  of  the  mail  pouch  by  ilir  pos- 
tal clerk  on  the  train  while  it  is  in  inntion;  '    and  one 

6  Nichols'  Adm'r  v.  Railroad  Co.,  S3  Va.  O:),  5  S.  E.  171. 
§  2;iO.    1  Burbauk  v.  liailroad  Co.,  42  L:\.  Aim.  ll.'<;.  S  SdUlli.  TiSi). 
2  T'itl.sbnrgli.  Ft.  W.  &  C.  Ry.  Co.  v.  Kiii-liaiii.  211  olil.i  SI.  lirA. 
«  Woohvine's  Adni'r  v.  Railway  Co..  ;;•;  W.  Va.  [i'2U.  1.".  S.  lO.  81. 
*  Poliug  V.  Railroad  Co.,  \iS  W.  Va.  G45,  18  S.  E.  7S-_'. 

(0-1) 


§  240  CARRIERS  OF  PASSENGERS.  (Cll .  17 

who  goes  to  a  railroad  station  to  see  and  hear  the  pres- 
ide']t  of  the  United  States,  who  is  being  carried  over  the 
railr(jad  on  a  special  excursion  train.^ 

§  240.     SAME— TRESPASSERS  ON  TRAINS. 

The  only  duty  due  by  a  railroad  company  to  one  who 
is  an  intruder  or  a  trespasser  on  its  train  is  to  refrain 
from  wantonlv,  willfully,  or  intentionally  injuring  him. 
It  is  not  liable  for  an  injury  caused  by  the  mistake,  in- 
adyertence,  or  negligence  of  its  employes.^  Thus,  a 
trespasser  riding  on  a  hand  car  at  night  cannot  com- 
plain of  the  company's  failure  to  haye  a  headlight  on 
an  approaching  locomotive;  ^  nor  can  one  who  climbs 
on  a  moving  freight  car  recover  for  injuries  sustained 
in  being  thrown  off  b}'  reason  of  a  concussion  of  the  car 
with  another.^      But,  after  discovering  that  a  trespaf-s 

e  Gillis  V.  Ilaihoad  Co.,  .".9  Pa.  St.  129. 

§  240.  1  Railroad  v.  Meacliam,  91  Tenii.  428,  19  S.  W.  2:32;  Chicago, 
B.  &  Q.  R.  Co.  V.  Mehlsack,  181  111.  Gl,  22  N.  E.  812,  44  111.  App.  124; 
Darwin  v.  Railroad  Co.,  23  S.  C.  531.  "To  the  trespasser  on  its 
trains,  just  as  to  trespassers  on  its  track,  the  railroad  company  owes 
precisely  the  same  duty  which  it  owes  to  all  mankind;  and  this  duty 
is  exactly  what  each  man  owes  to  eveiy  other,  viz.  abstention  from 
wanton  and  willful  injury  in  the  use  of  one's  property."  Alaba  ra  G. 
S.  K.  Co.  V.  Harris,  71  Miss.  74,  14  South.  263.  One  who  rides  on  a 
freight  train,  with  the  intention  of  stealing  a  ride,  without  invitation 
or  sufferance  of  the  train  hands,  is  a  tresiiasser,  to  whom  the  com- 
pany owes  no  duty,  save  not  to  willfully  or  recklessly  injure  him  after 
discovering  him  on  the  train.  Farber  v.  Railway  Co.,  IIG  Mo.  SI,  22 
S.  W.  631.  Although  a  person  stealing  a  ride  on  a  freight  train  is  a 
trespasser,  the  servants  of  a  railroad  company  have  no  right  to  reck- 
lessly and  wantonly  inflict  injury  on  him.  Planz  v.  Railrcad  Co.,  1.37 
Mass.  377,  32  N.  E.  356.     As  to  ejection  of  trespassers,  see  post,  §  359. 

2  Eastern  Kentucky  Ry.  Co.  v.  Powell  (Ky.)  33  S.  W.  629. 

3  Buckley  v.  Railroad  Co.,  43  N.  Y.  Super.  Ct.  187.     A  trespasser 

(622) 


Cll.    17)  TO    WHOM     LIABLE    AS    rAS>r.N(,  IKS.  §    240 

er  or  volunteer  on  its  road  or  cars  has  plftced  liinisflf  in 
a  position  of  danger,  tlie  servants  of  a  railroad  company 
must  exercise  reasonable  car;-  to  avert  the  danger/  In 
some  states,  however,  it  is  held  that  a  railruatl  eoni- 
pany  owes  the  duty  of  exercising  care  towards  a  pia-son 
wrongfully  riding  on  a  train,  with  the  knowledge  and 
consent  of  the  conductor;  ^  but  the  true  rule  wmild 
seem  to  be  that  such  knowledge  does  not  impose  on  i  h" 
company  the  duty  of  exercising  care  for  his  safety.®     In 

wlu)  was  injured  Avhile  trying  to  climb  upon  a  car  in  a  slowly  moving 
freight  train,  whicti  he  was  prevented  from  doing  by  a  braki'inau. 
cannot  recover  damages  from  the  railroad  company,  unless  the  injury 
was  caused  by  the  use  of  unnecessary  force  by  the  brakeman.  Louis- 
ville &  N.  R.  Co.  V.  Bernard  (Ky.)  37  S.  W.  S41.  A  yard  master  who 
jumps  on  the  aide  ladder  of  a  passing  freight  train,  and  in  that  posi- 
tion rides  into  the  yards  of  another  company,  to  ascertain  whether 
any  cars  are  to  be  transferred,  is,  while  so  riding,  a  trespasser;  and 
the  other  company  is  not  liable  for  injuries  sustaiued  by  him  in  its 
yards,  caused  by  being  struck  by  a  switch,  and  thrown  from  his  posi- 
tion.    Grunst  v.  Railway  Co.  (Mich.)  67  X.  W.  :«o. 

4  Pettit  V.  Railway  Co.,  58  Minn.  120,  u'J  N.  W.  1082;  Id..  02  Minn. 
530.  G4  N.  W.  1019. 

s  See  ante,  §  220.  In  Berry  v.  Railway  Co.,  124  Mo.  224,  2.".  S.  W. 
229,  it  was  held,  per  Black,  C.  J.,  and  Brace  and  Barclay,  .I.J.,  that  a 
railroad  company  owes  the  duty  of  exercising  ordinary  care  to  per- 
sons on  a  construction  train  with  the  knowledge  and  consent  of  the 
train  hands,  thoiigh  they  paid  no  fare,  and  are  not  entitled  to  tlie 
protection  of  passengers.  It  was  .said:  "I'ersons  in  charge  of  a  train 
are  not  ordinarily  under  any  duty  to  look  out  for  trespassers;  but. 
when  a  person  is  known  to  be  on  a  train  liy  thoso  in  charge  of  it. 
they  are  in  duty  bound  to  use  ordinary  care  to  avoid  injuring  iiinj. 
though  he  may  be  a  wrongdoer.  Knowledge  of  the  presence  of  tlie 
wrongdoer  carrits  this  duty.  A  failure  to  uscordinaiy  care  u-ider  su.h 
circumstances  is  but  little  short  of  willful  injury."  Sherwoo.1.  Cantl. 
and  Burgess,  JJ.,  dissented,  and  held  that  to  i>ersons  not  i^asscngers. 


6  McXamara  v.  Railway  Co.,  61  Minn.  29(i,  63  N.  W.  72G. 


§    241  CARRIERS   OF  PASSENGERS.  (Ch.    17 

Iowa,  a  statute  '  renders  a  railroad  company  liable  for 
"''all  damages  sustained  by  any  person  *  *  *  in 
con&equence  of  the  neglect  of  agents,  or  by  any  misman- 
agement of  engineers  or  other  employes."  Under  this 
statute,  willfulness  or  an  actual  intent  to  injure  is  not 
necessary  to  render  the  company  liable  for  injuries  to  a 
person  wrongfully  on  one  of  its  trains.* 

g  241.     SAME— TRESPASSING  CHILDREN. 

As  a  general  rule,  an  owner  of  property  is  under  no 
different  a  duty  towards  trespassing  children  than  to- 
wards trespassing  adults.  One  difference,  however,  ex- 
ists. It  is  this:  The  owner  of  dangerous  machinery, 
who  leaves  it  in  an  open  place,  though  on  his  own  land, 
where  he  has  reason  to  believe  that  young  children  will 
be  attracted  to  play  with  it,  and  be  injured,  is  bound  to 
use  reasonable  care  to  protect  such  children  from  the 
danger  to  which  they  are  thus  exposed.^  The  line  of 
argument  adopted  in  support  of  this  rule  is  that  such 

but  trespassers  on  its  trains,  tlie  company  is  not  liable  except  for 
gross  negligence  and  willful  wrong.     Id.  339. 

7  Code  Iowa,  §  1307;    McClain's  Code  18S8,  §  2002. 

8  Way  V.  Railway  Co.,  73  Iowa,  4G3,  35  N.  W.  525.  In  Texas  &  P. 
Ry.  Co.  V.  Watkins,  88  Tex.  20,  24,  29  S.  W.  232,  it  is  said:  "The 
doctrine  held  by  some  courts,  that  a  railway  owes  no  duty  to  a  tres- 
passer wrongfully  on  its  tracks,  has,  never  been  adopted  in  this  state, 
but  has  been  expressly  repudiated.  It  is  the  duty  of  the  servants  of  a 
railway  company  operating  itsi  trains  to  use  reasonable  care  to  dis- 
cover persons  on  its  track,  and  a  failure  to  use  such  care  is  negli- 
gence on  the  part  of  the  company,  for  which  it  is  liable  in  damages 
for  an  injury  resulting  therefrom,  unless  defeated  by  evidence  of  con- 
tributory negligence  on  the  part  of  the  person  injured." 

§  241.      1  Lynch  v.  Nurdin,  1  Q.  B.  29;    Railroad  Co.  v.  Stout,  17 
^\n]\.  657;  Keffe  v.  Railway  Co.,  21  Minn.  207. 
(024) 


Ch.    17)  TO    WHOM    LIABLE    AS    PASSENGERS.  §    •_>41 

machinery,  being  attractive  to  young  cliildivu,  pivs(Mit.s 
to  them  a  strong  temi)tation  ta  phiy  with  it,  and  thus 
allures  them  into  a  danger  whose  nature  and  (-xti-ut 
they,  being  Avithout  judgment  and  discrt-tion.  .an  uri- 
ther  apprehend  nor  appreciate,  and  against  whidi  thy 
cannot  protect  themselves;  that  such  children  may  be 
said  to  be  induced  by  the  owner's  own  conduct  to  come 
upon  the  premises;  that  Avhat  an  express  invitation  is 
to  an  adult  an  attractive  plaything  is  to  a  vh\U\  of  ten 
der  years;  that,  as  to  them,  such  machinery  is  a  hid 
den  danger, — a  trap.^ 

This  principle  has  been  generally  applied  against 
railroad  companies  in  what  are  known  as  the  "Turn-Ta- 
ble Cases."  ^  Some  of  the  courts  have  applied  the  same 
principle  to  children  riding  on  street  cars  and  trains. 
"The  duty  resting  upon  a  street-railroad  company  t<» 
employ  the  proper  precautions  to  avoid  injury  to  chil- 
dren entering  its  cars  would  comprehend  tiie  exeirise 
of  reasonable  diligence  to  guard  and  shield  from  dan- 
ger a  child  not  of  the  age  of  discretion  to  understand 
and  appreciate  the  peril  of  riding  in  an  unsafe  and  ex- 
posed position.  Accordingly,  it  would  generally  b«* 
negligence  to  allow'  such  a  child  to  ride  upon  the  steps 
of  the  front  platform  wdien  his  presence  in  a  situation 
thus  exposed  to  danger  is  actually  known,  or  the  eir- 
cumstances  are  such  as  would  nuike  failure  t(»  note  his 
peril  palpable  neglect  and  inattention  to  <Iul.v  on  the 
part  of  those  having  the  control  an«l  niana.^t  ineni  of  the 

2  Twist  V.  Railroad  Co..  .39  Minn.  104,  3!J  N.  W.  402. 

3  Railroad  Co.  v.  Stout.    IT  Wall.  tl.'.T;    KelTr   v.    Railway  Co..   21 
Minn.  207;    Twist  v.  Railroad  Co.,  30  Minn.  1(^4,  ;i9  .\.  W.   li>2. 

V.  1  FET.CAR.PAS. 40  {(ili/i) 


§    -41  CARRIERS   OF  PASSENGERS.  (Cll.    17 

car."  *  So,  it  has  been  held  that  the  train  hands  of  a 
railroad  company  who  permit  a  passenger  car  to  stand 
on  a  side  track,  within  a  few  feet  of  a  depot,  must  exer- 
cise ordinary  care  to  ascertain  whether  there  are  any 
trespassing  children  in  it  before  they  back  against  oth- 
er cars  for  the  purpose  of  coufjling  them  together;  and 
failure  to  exercise  care  for  this  purpose  renders  the 
company  liable  for  injuries  sustained,  in  the  concus- 
sion, by  children  inside  the  car,  though  the  train  hands 
did  not  know^  they  were  there.^  It  has  even  been  held 
that  a  railroad  company  is  liable  for  injuries  to  a  tres- 
passing boy  who  climbed  on  a  moving  train  at  a  public 
street  crossing,  if  its  employes  could  have  ascertained 
bis  position  of  danger  by  the  exercise  of  ordinary  care.* 

4  Wynn  v.  Railway  Co.,  91  Ga.  344,  17  S.  E.  G49.  In  .some  of  the 
cases  the  principle  has  been  so  applied  as  to  require  the  servants  of 
the  carrier  to  exercise  care  for  tlie  safety  of  a  child  riding  on  the 
vehicle  by  their  invitation.  New  Jersey  Traction  Co.  v.  Danbech  (N. 
J.  Sup.)  31  Atl.  1038;  Cook  v.  Navigation  Co.,  76  Tex.  353,  13  S.  W. 
475.  Where  a  child,  deaf  and  dumb,  and  10  years  of  age,  is  led  to 
frequent  the  cars  of  the  companj',  in  ignorance  of  the  danger  and  the 
illegality  of  the  act,  by  the  well-meant,  though  injudicious,  kindness 
of  the  employes,  and  is  hurt  through  their  negligence  while  they  are 
perfomiing  services  within  the  scope  of  their  employment,  the  com- 
pany cannot  escape  liability  on  the  mere  ground  that  the  child  was 
there  without  having  permission  under  the  lawful  rules  and  regula- 
tions of  the  corporation  managing  the  railroad.  Lammert  v.  Rail- 
road Co.,  9  111.  App.  .388, 

5  Louisville  &  N.  R.  Co.  v.  Popp  (Ky.)  27  S.  W.  992. 

6  Thompson  v.  Railway  Co.  (Tex.  Civ.  App.)  32  S,  W.  191.  In 
Hicks  V.  Railroad  Co.,  64  Mo.  430,  it  was  held  that  a  boy  on  a  sta- 
tion platfoi-m,  built  for  the  accommodation  of  passengers,  though  he 
has  no  business  there,  is  not  a  trespasser,  and  willfulness  and  wan- 
tonness need  not  be  proved  to  render  the  company  liable  for  an  in- 
jury caused  by  his  being  struck  by  a  piece  of  timber  projecting  from 

(626) 


Ch.    17)  TO    WHOM    LIABLE    AS    PASSENGERS.  §    241 

But  the  true  rule  undoubtedly  is  that  a  railroad  com- 
pany owes  no  duty  of  active  vi«;ihincc  to  keep  boys  out 
of  its  station  yards,  or  from  jumpinji'  on  moving  trains 
wliile  in  such  yards  or  on  its  trades.  Siicli  boys  are 
trespassers,  and  the  company  owes  no  duty  to  them,  ex- 
cept that  of  not  wantonly  or  recklessly  injuiiui;  tlicni 
after  discoyering  them  to  be  in  peril."      Boys,  l")  and  17 

a  freight  ear  two  feet  over  the  station  platform.  Hicks  t.  Railroad 
Co.,  64  Mo.  430.  But  in  Baltimore  &  O.  K.  Co.  v.  Sfhwiiullinjr,  101 
Pa.  St.  258,  it  was  held  that  a  railroad  company  owes  uo  duly  lo  a 
boy  who  stands  on  the  edge  of  tlie  station  platform,  without  any  invi- 
tation from  its  agents  and  employes,  and  having  no  business  with 
them;  and  hence  there  can  be  no  recovery  for  injuries  sustained 
by  being  struck  by  a  slight  projection  from  the  side  of  a  passing 
freight  car.  As  will  app^r  from  the  next  paragraph,  the  rennsyl- 
vania  decision  is  correct. 

7  Barney  v.  Kailroad  Co.,  I'JO  Mo.  372.  28  S.  W.  lOGii;  Catlett  v. 
Railway  Co.,  ~u  Ark.  461,  21  S.  W.  1002;  Chicago  cV:  A.  R.  Co.  v. 
Lammert,  12  lU.  App.  408.  A  railroad  company  is  not  liable  for 
injuries  to  a  small  boy  who  is  enticed  onto  a  slowly  moving  train  by 
other  boys,  riding  thereon  by  permission  of  tlie  brakeman.  and  who 
falls  off  while  climbing  the  steps  of  the  rear  car.  where  Uiere  is  no 
evidence  that  the  brakeman  at  his  post  of  duty  saw  him.  Wood- 
bridge  V.  Kaih-oad  Co.,  105  Pa.  St.  4G0.  A  railroad  company  Is  not 
responsible  for  the  death  of  a  13  year  old  boy.  who  rode  some  dis- 
tance on  a  wild  train,  stepped  from  it  while  in  motion,  retaining  his 
hold  on  the  railing,  and,  running  along  for  a  short  distance,  then 
swung  himself  back  onto  the  car  step,  from  which  he  fdl  or  jnuiiu'd 
■while  the  train  was  in  motion,  when-  there  Is  no  eviilcnce  that  the 
train  hands  saw  his  position  of  peril.  Powers  v.  Railway  Co..  .17 
Minn.  .3.32,  .59  N.  W.  307.  A  boy  eight  years  old,  standing  near  a 
railroad  track  as  a  freight  train  passed  along  on  a  slinrp  upgrade,  nt 
a  speed  of  eight  miles  an  horn-,  wa.^  waincd  by  tiie  enginc-r  lo  g.-i 
away.  He  s-tepped  back,  but  came  up  to  the  train  agahi,  and  svVmhI 
the  mounting  appliance  attached  to  tlie  end  of  a  <-ar.  and  hung  on. 
Tlic  fireman  saw  him,  and  made  motions  warning  hlni  to  p-i  oH'. 
In  doing  so,  he  fell  under  the  moving  train,  .Ind  was  Injmvd.      il-ld. 

((127) 


§  241  CARRIERS  OF  PASSENGERS.  (Cll.  17 

years  old,  playing  about  moving  ears,  jumping  on  and 
off,  must  take  the  risk  of  life  and  limb  if  they  will  per- 
sist in  such  dangerous  sport.*  So,  a  street-car  com- 
pany which  is  hauling  two  empty  cars  over  its  track  to 
its  repair  shop  is  under  no  obligation  of  keeping  watch 
to  see  that  boys  do  not  jump  on  the  caj"  while  being  so 
driven;  and  a  boy  who  jumps  on  the  car  while  in  mo- 
tion, and  is  injured  by  falling  off  or  jumj)ing  off,  cannot 
recover  where  the  driver  was  ignorant  of  his  presence 
on  the  car.^  It  has  even  been  held  that  train  hands 
making  up  a  freight  train  are  not  obliged  to  be  on  the 
lookout  to  prevent  trespass-  ing  boys  from  entering  cars 
standing  on  a  side  track/ "^      So,  a  railroad  company 

that  the  railroad  company  was  not  liable,  as  the  failure  to  stop  the 
train  and  remove  the  boy  (which  it  was  not  sliown  could  have  been 
safely  done)  did  not  amount  to  willfulness.  IMttsburgh,  C,  C.  & 
St.  L.  Ry.  Co.  V.  Redding,  140  Ind.  101,  39  N.  E.  921. 

s  Michaud  v.  Railway  Co.  (Me.)  34  Atl.  172. 

»  Bishop  V.  Railroad  Co.,  14  R.  I.  314. 

10  Ciu-ley  V.  Railway  Co.,  98  Mo.  13,  10  S.  W.  593.  A  railroad  com- 
pany which  stops  its  freight  trains  at  a  crossing  with  another  road, 
near  a  school  house,  is  not  under  any  obligation  to  exercise  active 
vigilance  to  see  that  children  do  not  board  a  train  while  so  stopping: 
and,  if  none  of  its  employes  know  of  the  attempt  of  a  child  to  climb 
the  train,  it  is  not  liable  for  injuries  sustained  by  his  being  thrown 
from  the  car  by  the  starting  of  the  train.  Atchi.son,  T.  &  S.  P.  R. 
Co.  V.  Plaskett,  47  Kan.  107,  26  Pac.  401.  Where  a  boy  gets  on  the 
footboard  of  a  switch  engine  in  a  railroad  yard,  the  engineer  owes 
him  no  duty  of  care,  unless  he  actually  sees  him  there.  Hughes  v. 
Railway  Co.,  65  Mich.  10,  31  S.  W.  603.  It  is  not  within  the  scope 
of  the  employment  of  a  baggage  master  connected  with  a  railway 
train,  but  not  shown  to  have  been  put  in  charge  of  the  same,  to  in- 
vite or  permit  any  person  or  persons  to  enter  and  ride  on  a  passenger 
coach  in  such  a  train.  Hence  his  permission  to  a  number  of  little 
girls  to  get  on  a  coach  in  a  passenger  train  while  it  is  being  switched 
•  on  a  side  track  for  the  night  does  not  create  the  relation  of  passenger 
(028) 


Ch.    17)  TO    WHOM    I.lAni.K    AS    TASSKNGERS  §    24L 

owes  no  diitv  of  care  to  a  bov  who,  instead  of  ^oinji 
around  ears  standing  on  a  laivate  switeli,  underiakos 
to  CO  tlironcli  them,  without  the  knowUnljie  of  Jinv  of 
the  company's  employes,  and  avIio  is  kiUed  by  a  lurch  of 
the  train,  which  causes  a  slidiuj;  iloor  on  tlie  sidr  nf  the 
car  to  close  against  the  boy's  head.^^ 

Of  course,  no  liability  ean  attach  a<iainst  a  railrtiad 
company  if  it  has  not  even  been  guilty  of  negligence  in 
its  treatment  of  trespassing  children.  Thus,  a  rail- 
road company  is  not  liable  for  the  death  of  a  Ixi.v  w  ho 

aud  carrier  between  the  company  and  the  girls.  Iteary  v.  Kailwjiy 
Co.,  40  La.  Ann.  32,  3  Sonth.  SJtO.  A  Itoy  who  gets  on  a  car  in  a 
freight  train,  without  the  knowledge  of  the  train  hands,  is  not  a  pas- 
si'iiger;  and  hence  the  company  is  not  hoinul  to  use  the  uimust  care 
aud  diligence  which  human  foresiglit  is  capable  of  to  avoid  injuring 
him.     State  v.  Baltimore  &  O.  K.  Co.,  l.'4  Md.  84. 

11  Bollinger  v.  Railroad  Co.,  47  La.  Ann.  l-2\.  17  South. ^2."».'5.  In 
Mexican  Nat.  Ky.  Co.  v.  Crum,  6  Tex.  Civ.  App.  702.  2.".  S.  W.  112i;, 
it  is  said:  "Where  a  child  of  tender  years  is  injured  wliile  standing 
in  the  door  of  a  freight  car  belonging  to  a  railroad  comiiany,  the  de- 
gree of  cai-e  to  be  exercised  by  the  company  depends  on  the  circinn- 
stances  under  which  the  child  came  there,  to  wit:  (1)  If  he  was  in 
the  car  at  the  invitation,  either  express  or  implied,  of  the  servants  of 
the  company,  it  was  the  duty  of  the  company  and  its  servants  to  ex- 
ercise ordinary  care  towards  the  child  to  prevent  him  from  being  in- 
jured, and  to  abstain  from  doing  anything  which  woidd  reasonably 
result  in  his  injury,  taking  into  consideration  his  tender  years.  (2)' 
If  he  was  there  merely  with  the  consent  and  knowledge  of  the  com- 
pany's servants  in  control  of  the  cars,  and  engaged  in  transferring 
freight,  a  different  rule  of  measuring  tlie  company's  duly  would  olv 
tain.  Mere  acquiescence  or  permission  of  the  <-ompany  <>r  its  st-rv- 
ants  in  being  in  the  car  would  create  no  duty  on  ilif  part  of  the 
company,  except  to  refrain  from  acts  willfully  and  knowingly  inju- 
rious to  him.  (3)  If  he  was  not  upon  the  cars  at  llie  Invitiillon  of  the 
company,  or  by  its  permission,  he  was  an  inlrulcr;  and  in  ili:il 
event  he  was  not  entitled  to  recover,  exceiit  for  injuries  kmtwingly 
or  willfudy  inflicted."  . 


§  241  CARRIERS  OF  PASSENGERS.  (Ch.  17 

stoaltliilj  got  on  a  slowlj-moving  locomotive,  and  who 
fell  from  it  by  reason  of  a  jar  caused  by  its  stopping  in 
the  usual  and  ordinary  manner.^^  So,  where  a  boy 
stealing  a  ride  on  the  front  platform  of  a  street  car  has 
been  repeatedly  warned  off,  and  once  put  off  by  the 
driver,  the  driver,  whose  attention  was  taken  up  witli 
passengers  who  had  just  gotten  on  the  car,  cannot  be 
deemed  guilty  of  negligence  in  failing  to  notice  that  the 
boy  had  again  gotten  on  the  front  platform. 


13 


12  Miles  V.  Receivers,  4  Hughes,  172,  Fed.  Cas.  No.  9.544. 

13  Wrasse  v.  Traction  Co.,  14G  Pa.  St.  417,  23  Atl.  34.3.  Failure  of 
the  driver  of  a  street  car  to  compel  a  boy,  who  had  jumped  on  the 
platform,  to  leave  it,  does  not  render  the  company  liable  as  for  a  per- 
missive riding  on  the  front  platform,  where  the  attention  of  the 
driver  was  properly  directed  to  a  switch  which  he  was  approaching 
when  the  boy  got  cu,  and  where  it  appears  that  the  boy  was  not  on 
the  car  exceeding  30  seconds  when  he  jumped  off  and  was  injured. 
Hestonville,  etc.,  K.  Co.  v.  Kelley,  102  Pa.  115.  No  negligence  on  the 
part  of  a  street  railway  is  shown  by  the  fact  that  a  13  year  old  boy, 
without  the  knowledge  of  the  conductor,  seated  himself  on  the  front 
platform  of  a  crowded  car,  in  such  a  position  that  he  was  struck  on 
his  projecting  knees  by  a  mortar  box  in  the  street.  Butler  v.  Railway 
Co.,  139  Pa.  St.  195,  21  Atl.  500. 

(630) 


Ch.    18)         DUTY    TO    ACCEPT    AND    CAKUV    J'ASStNGtRS.  §    242 

CHAPTER  XVIIL 

DUTY  TO  ACCEPT  AND  CAllUY  PASSENGERS. 

S  242.  Carrier  must  Accept  All  Proper  Persons. 

24o.  Who  may  be  Kejected. 

244.  Same — Business  Kivals. 

245.  Same— Exclusive  Station  I'riviiejres. 
24G.  Same — Waiver  of  Kiglit  to  Reject. 

§  242.     CARRIER  MUST  ACCEPT  ALL  PROPER 

PERSONS. 

A  common  carrier  of  passengers,  upon  being  paid 
or  tendered  the  usual  fare,  must  receive  and 
carry  all  persons  who  offer  themselves  as  pas- 
sengers to  whose  character  and  conduct  there 
is  no  reasonable  objection,  provided  there  is 
room  in  the  conveyance. 

The  idea  that  lies  at  the  very  base  of  the  law  of  runi- 
mon  carriers,  both  of  property  and  of  persDiis,  is  ihai 
they  are  public  servants,  aud  serve  all  alike.^  By  en 
ga*;iiig-  in  the  business  of  a  common  eai  rier,  the  owikm- 
of  a  vessel  or  vehicle  devotes  it  to  a  public  nse,  and 
everybody'  constitnting  a  part  of  tiie  public  is  eiiliih-d 
to  an  equal  and  impartial  j)art  i(i|)at  i<m  in  iis  iisi-.  This 
principle  has  been  announced  by  the  coiiits  as  a  paii 
of  the  common  law,- and  has  been  enacfcd  as  a  siniiiie 

§  242.      1  Samuels  v.  Railroad  Co..  .Jl  Ti-il.  ."i7. 

2  Bennett  v.   Dutton   (Is;',!))    10   N.    11.   4S1 ;    .[.mk-Us    v.    ('oilman,   2 
Sumn.  221,  Fed.  Cas.  So.  7,2."S:     I'carsoii  v.  Diiaii.'.   I  Wall.  i«>.',. 


§    li42  CARRIERS   OF  PASSENGERS.  (Cll.    IS 

in  some  of  the  states.^  Tliis  principle  is  applicable 
with  special  force  to  railroad  companies.  "Kailroads 
are  creatnres  of  the  law,  and  are  intrusted  v.itli  the  ex- 
ercise of  sovereign  powers  to  promote  the  public  inter- 
est, and  are  therefore  bound  to  conduct  their  affairs  in 
furtherance  of  the  public  objects  of  their  creation.  The 
interest  of  stockholders  in  their  profits  is  secondary, 
and  in  the  main  subsidiary  to  the  interests  of  the  pub- 
lic. It  is  in  view  of  their  public  character  that  the 
courts  are  authorized  to  determine  and  enforce  the  pub- 
lic duties  enjoined  on  them.  The  duties  which  thej 
owe  to  the  general  public  and  the  state  cannot  be 
shirked  or  evaded.''  *  Under  this  principle,  it  has  been 
held  that  one  who  has  purchased  a  full  fare  ticket  has 
a  right  of  action  against  a  railroad  company  for  refus- 
ing him  admittance  to  a  regular  passenger  train,  and 
compelling  him  to  wait  two  hours,  and  take  a  crowde<l 
excursion  train,  filled  with  disorderly  passengers,  pay- 
ing half -fare  rates.  ^      So,  the  keeper  of  xi  public  ferry  is 

3  How.  Ann.  St.  Micb.  §  3:j24;  2  Conip.  Laws  Utah  ISSS,  p.  604.  § 
4502;    Comp.  Laws  Dak.  §  38S2. 

4  People  V.  St.  Louis,  A.  &  T.  H.  R.  Go.  (111.  Sup.)  45  X.  E.  824. 

5  Brassfield  v.  Railway  Co.,  19  Mo.  App.  G51;  Alley  v.  Railway  Co. 
(Tex.  Civ.  App.)  35  S.  W.'  735.  Where  a  passenger  train  is  scheduled 
to  stop  at  a  flag  station  on  the  proper  signal  being  given,  failure  to 
stop  the  train,  if  the  trainmen  see  the  signal,  and  willfully  run  by  the 
station,  Is  a  violation  of  How.  Ann.  St.  Mich.  §  3324.  wliich  provides 
a  penalty  for  the  refusal  of  railroad  companies  to  take  and  transport 
passengers  without  legal  or  just  excuse.  Freeman  v.  Railroad  Co., 
G5  ]\Iich.  577,  32  N.  W.  833.  But  the  failure  to  stop  a  train  at  a 
regular  station  does  not  gi^'e  a  right  of  action  to  a  pas-enger  Avho  was 
at  the  station  waiting  to  take  it,  and  who  took  passage  on  a  freight 
train  the  same  night,  though  he  Avas  chilled  with  cold  and  suffered 
mental  distress  by  reason  of  being  left,  in  the  absence  of  any  i>e- 

(632) 


Ch.    18)         DUTY    TO    ACCEPT    AND    CARRY    PASSENGERS.  §    243^ 

liable  to  an  action  on  the  case  for  dania^ies  resulting 
from  a  refusal  to  set  a  passenjier  across  the  stream  over 
which  he  keeps  his  ferry,  though  there  is  a  stnniK'  giv- 
ing- a  fixed  i)eiialtY  for  such  neglect  of  dutY.* 


g  243.     WHO  MAY  BE  REJECTED. 

A  common  carrier  may  exclude  all  ixmshus  from  its 
vehicles  whom  it  has  reasonable  grounds  to  bdicYe 
will  injure  or  annoy  tlu^r  fclloNY  ]>assengers.  This  is 
manifestly  just,  since,  as  we  haYe  seen,'  the  admission 
of  such  persons  to  its  vehicles  is  negligence,  which  ren- 
ders the  carrier  liable  for  the  injuries  AYliich  they  mav 
inflict  on  their  fellow  passengers."  Thus,  a  carri  -v  li;is 
the  right  to  exclude  from  its  train  a  person,  not  accom 
pauied  with  proper  attendants, whom  its  servants  know 
to  be  dangerously  insane,  though  at  the  time  »»f  olTcr 
ing  to  become  a  passenger  he  was  apparently  hariule.ss, 
and  conducted  himself  in  no  way  different  from  other 

cuniai'v  damage  or  of  any  iiorsoual  injury  resulting  in  any  loss.  Mnr 
tin  V.  Piailioad  Co..  :J2  S.  C.  .7.12.  10  S.  10.  Mu. 

6  Wallen  v.  McIIeury,  3  Ilumpli.  (Tonn.)  24.1.  A  ItM ivhimii  is  not 
liable  to  the  statutory  penalty  for  failure  to  transport  a  p:«ssi'ni;»'.* 
across  the  Ohio  river  fr.  ni  Ohio  to  Keutui  ky.  since  llie  Keiitu  ky  -l:r- 
ute  requires  ferrymen  to  transport  only  from  Kentucky  to  I'w  djiji  .si:e 
shore.      Reeves  v.  Little.  7  Bush  (Ky.)  4t!!t. 

§  243.      1  Ante,  S  'M  et  seq. 

2  Code  Ga.  1S.S2.  §  2082,  provides  tliat  conunon  carriers  of  passenuf  r» 
may  refuse  to  admit  or  may  eject  from  their  conveyanci  s  all  i  e  .s  <ds 
refusing  to  comply  with  reasonable  regulations,  or  guilty  of  Imprnjii'- 
conduct,  or  of  bad,  dissjlute.  doubtlul.  or  suspicious  char.icters.  Sj 
they  may  ri'fusx,'  to  convey  jiersons  seeking  to  interlcie  with  their  own 
business  or  interests.  As  to  the  ejection  of  iiusseiigcrs  fruni  vehiclp.*, 
see  post.  0.  24. 


§  243  CARRIERS  OF  PASSENGERS.  (Ch.  18 

persons  applying  for  pas^age.^  So,  a  railroad  company 
is  not  bound  to  receive  any  person  as  a  passenger  wlio 
is  drunk  to  such  a  degree  as  to  be  disgusting,  offensive, 
disagreeable,  or  annoying;  and  a  person  so  drunlv  as  to 
be  likely  to  violate  the  common  i^roprieties,  civilities, 
and  decencies  of  life  has  no  right  to  a  passage  while  in 
that  condition.*  So,  gamblers  and  monte  men,  whose 
purpose  in  traveling  on  a  train  is  to  ply  their  vocation, 
may  be  excluded.^ 

But  the  mere  fact  that  a  female  passenger  is  not  of 
chaste  character  does  not  justify  her  exclusion  from 
the  train,  where  her  deportment  and  conduct  in  publi  • 
places  have  been  unexceptional.      "The  carrier  has 

3  Meyer  v.  Railway  Co.,  4  C.  C.  A.  221,  54  Fed.  116. 

4  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Vandyne,  57  lud.  576;  Will.s  v. 
Railroad  Co.,  129  Mass.  :i51;  O'Neill  v.  Railroad  Co.,  1.55  Mass.  371. 
29  N.  E.  630.  As  to  ejection  of  intoxicated  persons  from  vehicle,  see 
ante,  §  112,  and  post,  §  329. 

5  Thurston  v.  Railroad  Co.  (1S77)  4  Dill.  321.  Fed.  Cas.  No.  14,019. 
In  this  case,  Dundy,  J.,  said:  "The  railway  company  is  bound,  as  a 
common  carrier,  when  not  overcrowded,  to  take  all  proper  persons 
who  may  apply  for  transportation  over  its  line,  on  their  complying 
with  all  reasonable  rules  of  the  company.  But  it  is  not  bound  to 
carry  all  persons  at  all  times,  or  it  might  be  utterly  unable  to  protect 
itself  from  ruin.  It  would  not  be  obliged  to  carry  one  who^e  ostensi- 
ble business  is  to  injure  its  line;  one  fleeing  from  justice;  one  going 
upon  the  train  to  assault  a  passenger,  commit  larceny  or  robbery,  or 
interfering  with  the  proper  regulations  of  the  company,  or  for  gam- 
bling in  any  form,  or  committing  any  crime;  nor  is  it  bound  to  carry 
persons  infected  with  contagious  diseases,  to  the  danger  of  other  pas- 
sengers. The  person  must  he  upon  lawful  and  UgiMmate  business." 
In  Pearson  v.  Duane,  4  ^^'all.  G0.j,  it  is  said  that  a  carrier  may  refuse 
passage  to  a  person  bound  for  a  city  from  which  he  has  been  banisheLl 
by  a  vigilance  com.nittee,  then  in  supreme  control  of  the  city,  if,  in 
the  carrier's  opinion,  his  return  would  promote  further  difficulty,  and 
create  public  disorder. 

(034) 


Ch.    18)         DUTY    TO    ACCKPT    AND    CARRY    PAS^KNGERS.  §    248 

nothing-  whatever  to  (h>  wiili  i»ri\;it('  rliaiacti-r  m-  ron- 
chict,  except  so  far  as  it  furnislies  liini  witli  evidtMue  «>f 
^  probable  injury  abont  to  be  inflicted  on  bis  otlier  pas- 
sengers or  his  business.  He  must  carry  all  who  come 
properly  dressed,  and  who  behave  genteelly,  and  can- 
not classify  them  according  to  their  general  moral  rep- 
utation." To  permit  a  railroad  company  to  do  so 
■would  practically  place  the  character  of  every  woman, 
virtuous  or  not,  for  trial  before  every  railroad  conduct- 
or; and  the  reputation  of  her  private  life  might  be  at 
any  time  called  in  question  by  him/'  The  fact  that  the 
holder  of  a  commutation  ticket,  who  has  left  it  at  home 
by  inadvertence,  refuses  to  pay  his  fare,  excejjt  on  con- 
dition that  it  be  refunded  on  his  presentation  of  the 
commutation  ticket  the  next  day,  does  not  justify  the 
company  in  refusing  to  sell  him  commutation  tickets 
thereafter.''  So,  a  carrier  cannot  reject  a  person  as  a 
passenger,  otherwise  qualified,  on  the  sole  ground  that 
he  is  blind. ^ 

6  Browu  V.  Railroad  Co.,  7  Fed.  51. 

7  State  V.  Railroad  Co.,  48  N.  J.  Law,  55,  2  Atl.  803.  Disoharsod 
■railroad  laborers,  who  are  entitled  to  carriage  free  of  charge,  may  go 
on  a  train  peacefully,  and  remain  there  until  carried  to  destinatimi; 
but  if  the  conductor  refuses  to  carry  them,  .stops  the  train,  and  under- 
takes to  detach  the  mail  car,  and  to  send  it  forward  with  the  mail, 
they  are  guilty  of  obstructing  the  pa.ssage  of  the  mail  if  they  iirfvent 
him  from  so  doing  in  order  to  compel  him  to  carry  them  on  ilu-  train. 
.U.  S.  V.  Kane,  19  Fed.  4L». 

8  Zackery  v.  Railroad  Co.  (Miss.)  21  Soutii.  -Mij. 

(G35) 


§  244  CARRIERS  OF  PASSENGERS.  (Cll.  18 

§  244.     SAME— BUSINESS  RIVALS. 

A  common  carrier  of  passenoers  may  refuse  to  carrj 
a  person  whose  object  in  taking  passage  is  to  solicit 
other  passengers  to  give  their  patronage  to  business  ri- 
vals of  the  carrier.  The  vessel  or  vehicle  which  the 
carrier  uses  is  his  own;  and  except  to  the  extent  to 
which  he  has  devotefl  it  to  the  public  use,  by  the  busi- 
ness in  which  he  has  engaged,  he  may  manage  and  con- 
trol it  for  his  own  profit  and  advantage,  to  the  exclu- 
sion of  all  other  persons.  The  leading  case  on  this 
subject  is  Jencks  v.  Coleman,^  decided  in  1835,  in  one 
of  the  federal  district  courts.  In  this  case  it  was  held 
that  a  passenger  was  rightly  refused  admittance  to  a 
steamer  where  his  sole  object  was  to  solicit  other  pas- 
sengers to  complete  their  journey,  after  leaving  the 
steamer,  on  a  rival  line  of  stagecoaches.  So,  also,  a 
carrier  may  establish,  for  the  convenience  of  passen- 
gers, and  for  his  own  profit,  on  his  car  or  vessel,  an 
agency  for  the  delivery  of  baggage  of  passengers,  and 
of  express  matter,  and  exclude  all  other  persons  from 
entering,  to  solicit  or  receive  orders  from  passengers  in 
competition  with  the  agency  established  by  him.  This 
is  in  no  just  sense  a  monopoly.  It  is  simply  saving  to 
the  carrier  a  legitimate  advantage  which  his  position 
and  business  give  him.-  The  fact  that  a  carrier  waiver* 
his  rights,  in  this  respect,  in  regard  to  one  person,  does 

§  244.  1  2  Sumn.  221,  Fed.  Cas.  No.  7,258.  The  case  was  tried  be- 
fore Mr.  Justice  Story.  Daniel  Webster  was  one  of  tlie  counsel  for 
plaintiff,  and  it  was  reported  bj^  Charles  Suniuei. 

2  Barney  v.   Steamboat  Co.,  67  X.   i'.  :M)1;    The  D.  R.  Martin,  11 
Blatchf.  233,  Fed.  Cas.  No.  4,002. 
(036) 


Ch.    18)         DUTY    TO    ACCEPT    AND    CARRY    TASSEXGEUS.  §    244 

not  bind  liiiii  to  waive  tliem  in  rejiard  to  anotlu'i-  ])t'r- 
Boii.'  It  has  even  been  held  that  a  railroad  corpora- 
tion may  exclude  all  persons  whom  ir  pleases  when 
they  come  to  transact  their  own  private  busini'ss  with 
passengers  or  other  third  persons,  and  admit  whom  it 
pleases  when  they  come  to  transact  such  business. 
This  applies  to  persons  selling  lunches  to  passengers, 
or  soliciting  orders  from  passengers  for  ihc  sale  of 
lunches/ 

But  in  Florida  it  has  been  held  thai  a  rule  of  a  rail 
road  com])any  which  prohibits  passengers  on  its  trains 
from  wearing  the  uniform  of  a  line  of  steamers  running 
in  opposition  to  a  line  of  steamers  having  a  traffic  ar- 
rangement with  the  railroad  company  is  not  reason- 
able, and  hence  not  binding  on  the  public,  ami  the  ex- 
pulsion of  a  passenger  for  wearing  such  uniform  is  ille- 
gal.^ So,  it  is  not  a  lawful  excuse  for  tlie  refusal  of 
the  proprietors  of  a  stagecoach  to  accept  a  passenger 
that  they  have  a  traffic  agreement  with  the  proprietor 
of  a  connecting  line  of  coaches,  whereby  they  have 
agreed  not  to  receive  passengers  who  have  come  on  a 
rival  line  of  coaches  over  the  route  traversed  by  the 
connecting  line.® 

3  The  D.  R.  Martin,  11  Blatclif.  238,  Ted.  Cas.  No.  4.u9J. 

4  Fluker  v.  Railroad  Co.,  81  Ga.  4(51,  8  S.  E.  52!t.     .V  pnssi.njr.T  cm 
a  steamer  chartered  for  an  excursion  has  no  rijiht  to  sell  im  r.h.iii.lis.' 
on  tlie  boat  (peanuts,  popcorn,  watermelons,  and  the  like)  witJH.vit  p.-r 
mission  of  those  in  charge  uf  the  boat.     Smallnian  v.  Whilter.  S7  HI. 

54o. 

0  South  Florida  R.  Co.  v.  Rhodes,  25  Fla.  40,  5  South.  (Kl't. 

•  Bennett  v.  Duttou,  Hi  N.  II.  1«1. 

((;:5T) 


§  245  CARRIERS  OF  PASSENGERS.  (Cll.  18 


§  245.     SAME— EXCLUSIVE  STATION  PRIVILEGES. 

By  the  weight  of  anthority  in  this  country,  a  railroad 
comi^any  cannot  legall}'^  give  to  one  liack  and  omnibus 
company  the  right  to  the  use  and  the  occupancy  of  a 
portion  of  its  depot  grounds,  to  the  exclusion  of  others 
engaged  in  the  like  business  of  the  carriage  of  freight 
and  passengers  from  its  depot.  To  permit  a  railroad 
comijany  to  do  so  is  against  j)ublic  policy,  since  it 
would  thereby  be  enabled  to  control  largely'  the  trans- 
portation of  passengers  and  merchandise  beyond  its 
own  line,  and  would  establish  a  monopoly'  not  granted 
by  its  charter,  which  might  be  solel3'  for  its  own  ben- 
efit, and  not  for  the  benefit  of  the  public.  Such  a  reg- 
ulation also  violates  a  constitutional  or  a  statutory  pro- 
hibition againist  discriminations  in  charges  or  facilities 
for  transportation  of  freight  and  passengers.^  But  a 
rule  by  which  a  railroad  company  reserves  the  right  to 
assign  places  upon  its  own  grounds  to  the  different 
hackmen,  and  to  exclude  from  such  places  others  not 

§  245.  1  Kalamazoo  Hack  &  Bus  Co.  v.  Sootsma,  84  Micb.  194,  47 
N.  W.  667;  Moutaua  Union  Ry.  Co.  v.  Lauglois.  9  Mont.  419,  24  Pac. 
209;  Cravens  v.  Kodgers,  101  Mo.  247,  14  S.  W.  lOG;  McConnell  v. 
Pedigo,  92  Ky.  465,  IS  S.  W.  15.  In  England  the  rnle  seems  to  be  tbat 
the  granting  of  exclnsive  station  privilege  is  imlawful.  if  delay  and 
inconvenience  result  to  the  public  by  reason  of  such  an  arrangement, 
but  otherwise  not.  In  re  Marriott,  1  C.  B.  (N.  S.)  499;  Beadell  v. 
Railroad  Co.,  2  C.  B.  (N.  S.)  509;  Ex  parte  Painter,  Id.  702;  Barret 
V.  Railroad  Co..  1  C.  B.  (N.  S.)  423;  Barker  v.  Railway  Co.,  18  C.  B. 
46.  See,  also,  in  support  of  proposition  in  text,  Summitt  v.  State,  8 
Lea  (Tenn.)  413;  In  re  Palmer,  L.  R.  6  C.  P.  194;  In  re  Parkinson, 
Id.  554. 


Ch.    18)         DUTY    TO    ACCEPT    AND    CARRY    rAPSRNGKKS.  §    -45- 

assigned  thereto,  is  reasonable,  an«l  the  cdnipany  has  a 
riuht  to  eufort-e  it." 

In  Massachusetts  and  New  York,  hoAvcvcr.  n  .lilTcr- 
ent  rule  prevails.      A  coninioii  caiiit'i-  of  passengers 
and  their  baggage  to  and  from  a  railroad  station  lias 
no  right,  without  the  consent  of  tlu'  ronipany.  i-.  use 
the  grounds,  buihlings,  and  platforms  of  the  station  to 
solicit  the  patronage  of  passengers;    and  a  rcgulaiinn 
of  the  company  which  allows  such  use  by  pariicular 
persons,  and  denies  it  to  others,  violates  neither  tlie 
common  law,nor  a  statute  which  requires  railroad  com- 
panies to  give  all  persons  reasonable  and  equal  t<riiis, 
facilities,  and  accommodations  for  the  use  of  its  depot 
and  station  grounds.'      The  reasoning  in  support   of 
these  cases  is  the  same  as  that  in  the  preceding  section, 
under  which  the  courts  have  virtually  held  that  a  com 
inon  carrier  has  the  right  to  grant  exclusive  privileges 
to  solicit  the  patronage  of  passengers  on  its  traiu  or 
boat.      But,  while  a  railroad  company  may  nmke  such 
a  discrimination,  it  has  no  right  to  exclude  from  its 
premises  a  hackney  coach  ordered  by  a  passenger  to 

2  Cole  V.  Rowen,  8S  Mich.  210,  50  N.  W.  138.  lu  this  .as.,  it  was 
said:  "Thoy  [the  rulesl  iu  no  manner  give  place  to  one  liafliuiau  t«> 
the  exclusion  of  anotlier;  and  tliey  deprive  no  connnon  .arrier  of 
necessary  approach  to  the  d?pot  .^rounds  to  carry  on  his  business  of 
carrier  of  freiglit  and  passengers.  The  rules  touch  and  alT.vt  all 
nlik..  The  mere  fact  that  the  railroad  company  fixes  an.l  defrmmes 
the  place  where  each  particular  hack  shall  stan.l  is  nnt  a  disc-rindna- 
tion  between  hackmen,  but  is  a  necessary  rul-  t..  pr-vm  .p.a.n.ls  lor 
place,  so  often  seen  among  hackmen  around  <lep.its." 

3  Old  Colony  R.  Co.  v.  Tripp,  147  Mass.  :t.-i,  17  N.  10.  .v..;  Umwn  v. 
Railroad  Co.,  75  Hun,  355,  27  N.  Y.  Supp.  <«.;  New  York  (Vn..  .S:  11. 
K  U  Co.  V.  ShCHlcy  (Sup.)  27  .N.  V.  Supp.  isr.;  New  \ork  (cut.  & 
U    U.  It.  Co.  V.  Fly.m,  74  llun,  124,  2G  N.  Y.  Supi-.  sr.t.. 

((•.:ii») 


I  246  CARRIERS  OF  PASSENGERS.  (Cll.  18 

meet  liim  oo  an  incoming  train.  The  driver  of  such  a 
coach  is  not  engaged  in  his  vocation  of  soliciting  pat- 
ronage, but  is  waiting  to  take  one  with  whom  a  con- 
tract has  already  been  made/  So,  a  regulation  by 
which  a  railroad  company  excludes  all  persons  of  a  cer- 
tain class  from  its  station  grounds,  without  any  dis- 
crimination against  any  member  of  the  class,  is  valid. 
Thus,  a  regulation  excluding  innkeepers  or  their  agents 
from  the  station  platfrom  for  the  purpose  of  soliciting 
passengers  to  patronize  their  houses  is  reasonable,  and 
an  innkeeper  who  knowingly  violates  the  regulation 
may  be  ejected.^ 

§  246.     SAME— WAIVER  OF  RIGHT  TO  REJECT. 

A  common  carrier  who  receives  a  person  for  trans- 
portation with  knowledge  of  facts  which  would  author- 
ize his  rejection  as  a  passenger  cannot  exj)el  him  dur- 
ing the  journey,  except  for  misbehavior.^      A  case  de- 

*  Griswold  v.  Webb,  16  R.  I.  641),  19  Atl.  143.  In  this  case  the 
eoiu't  said:  "No  question  is  made  that  a  passenger  may  have  his  own 
carriage  enter  the  premises  of  a  carrier  to  talce  liim  away;  but  to  say 
that  one  who  is  not  so  fortunate  as  to  own  a  carriage  shall  not  be  al- 
lowed to  call  the  one  he  wants,  because  it  is  a  haeliney  carriage, 
"w'ould  be  a  discrimination  intolerable  in  this  country.  Yet  this  is 
really  the  plaintiff's  claim.  Every  passenger  has  the  right,  upon  the 
premises  of  the  carrier,  to  reasonable  and  usual  facilities  for  arrival 
and  departure;  and,  so  far  as  this  includes  the  right  to  be  taken  to 
and  from  the  station  or  wharf,  it  is  immaterial  whether  he  goes  in  a 
private  or  hired  carriage." 

5  Com.  V.  Power,  7  Mete.  (Mass.)  596;  Harris  v.  Stevens,  31  Vt. 
T9;    Landrigau  v.  State,  31  Ark.  50. 

I  246.  1  Hannibal  &  St.  J.  R.  Co.  v.  SAvift,  12  Wall.  262.  In  Mas- 
Eiter  v.  Cooper  (1803)  4  Esp.  260,  the  facts  were  as  follows:  PlaintiflC. 
TV'ho  had  been  disappointed  of  a  seat  in  a  mail  coach,  sent  for  a 
(040) 


Ch.    IS)         DITY    TO    ACCEPT    AND    CARKY    PASSENGEIiS.  §    'J4G 

cided  by  the  supreme  court  of  the  United  States  goes 
even  further,  and  holds  that  a  person  who  has  been  ac- 
cepted as  a  passenger  cannot  be  expelled  during  the 
journey  for  causes  which  would  have  authorized  his  re- 
jection as  a  passenger  in  the  first  place,  even  though 
the  carrier  was  ignorant  of  the  facts  when  the  journey 
began.^  But  it  would  seem  that  the  carrier,  in  justice, 
has  a  right  to  act  when  he  first  obtains  knowledge  of 
the  facts. 

chaise  to  defendant,  who  kept  chaises  for  hire.  It  came,  and  plain- 
tiff's luggage  was  tied  on,  and  he  got  onto  it.  An  exorbitant  demand 
of  fare  was  made,  but  afterwards  defendant's  servant  agri'cd  to  tal<e 
a  smaller  fare,  which  plaintiff  offered  to  pay,  but  defendant  refuse. I 
to  receive  it,  and  took  away  his  chai?e.  Lord  EUeuborough  said  that 
"if  a  person  is  permitted  to  get  into  a  chaise,  and  to  put  on  his  lug- 
gage, it  is  too  late  for  the  person  who  hires  out  the  chaise  to  object 
to  its  going  on  the  journey.  If  the  passenger  is  in  the  chaise,  ami 
tenders  the  money,  the  OAvner  of  the  chaise  is  bound  to  proceed  on 
the  journey.  There  is  an  inception  of  contract,  and  he  is  bound  to 
complete  it." 

2  Pearson  v.  Duane,  4  W^all.  0()5.  In  this  case  the  facts  were  as  fol- 
lows: Duaue  had  been  banislied  from  the  city  of  San  Francisco  by 
the  vigilance  committee,  then  in  supreme  control,  under  iic  lalty  of 
death  in  case  of  his  return.  He  went  to  Mexico,  but  sliortly  after- 
wards boarded  a  vessel  bound  for  San  Francisco.  After  being  at  sea 
for  a  few  days,  the  master  ascertained  who  he  was,  and  compelled 
him  to  get  on  board  a  vessel  bound  for  Mexico.  It  was  hold  that  the 
refusal  to  carry  should  precede  tlie  sailing  of  the  sliip:  that,  alti-r 
the  ship  has  gotten  to  sea,  it  is  too  late  to  take  exce|)ti(>ns  to  the 
character  of  a  passenger,  or  to  his  peculiar  position,  provided  he  vio- 
lated no  inflexible  rule  in  getting  on  board;  and  thai,  wliile  the  ap- 
prehended danger  sliould  be  taken  into  consideration  to  mitigate  •lam- 
ages,  it  did  not  afford  a  justification  for  the  ejection  of  the  pjussenger 
during  the  journey. 

V.  1  FKT.CAR.PAS. 41  (''•11) 


§  247  CARRIERS  OF  PASSENGERS.  (^Ch.  19 

CHAPTER  XIX. 

CARRIER'S  RULES  AND  REGULATIONS. 

§  247.    Power  of  Carrier  to  Make. 
248.    Province  of  Court  and  Jury. 

§  247.  POWER  OF  CARRIER  TO  MAKE. 

A  CDinnion  carrier  of  passengers  may  make  rules 
for  the  conduct  of  his  business,  and  may  re- 
quire passengers  to  conform  to  them,  if  they 
are  public,  uniform  in  their  application,  and 
reasonable.* 

The  riglit  of  a  raih'oad  company  to  make  reasonable 
rules  for  its  protection,  and  for  the  safety  and  con- 
venience of  passengers,  has  never  been  denied.^  Com- 
mon carriers  are  very  properly  held  to  a  strict  meas- 
iiie  of  responsibility  in  cases  of  injuries  to  passengers. 
It  is  not  unreasonable  that  they  should  have  the  right 
to  require  passengers  to  observe  such  proper  regula- 
tions as  are  essential  to  their  own  convenience  or 
safety.^ 

§  247.  1  Civ.  Code  Cal.  §  2186;  Comp.  Laws  Dali.  1887,  §  3895; 
Code  Mont.  ISM.l.  SS  2S;tG.  218G. 

2  Pennsylvania  R.  Co.  v.  Langdon,  92  Pa.  St.  21;  Sullivan  v.  Rail- 
road Co.,  30  Pa.  St.  234;  Deery  v.  Railroad  Co.,  1G3  Pa.  St.  403,  30 
Atl.  162;    Crawford  v.  Railroad  Co.,  26  Ohio  St.  580. 

3  Pennsylvania  R.  Co.  v.  Langdon,  92  Pa.  St.  21.  It  is  not  de-igned, 
in  the  present  chapter,  to  gather  up  the  various  rules  and  regulations 
of  common  carriers  that  have  bsen  upheld  by  the  courts.  Thes-e  are 
treated  in  connection  with  the  various  duties  which  the  carrier  is  re- 
quired to  perform,  and  will  be  found  grouped  in  the  Index  under  the 
title,  "Rules  and  Regulations." 

(642) 


Ch.  19)  caruiek's  rules  and  regulations.  5  247 

On  principle,  it  would  seem  that  a  passenger  ouulit 
not  to  be  bound  to  know  the  various  rules  and  rej^ula- 
tions  w^hich  a  common  carrier  may  i)rescrib<^  for  the 
conduct  of  his  business.      They  iU-e  not  in  thf  nature 
of  public  statutes  enacted  by  the  state,  which  t-vrry 
one  is  conclusively  presumed  to  know.      In  addition 
to  this,  the  rules  and  rejiulations  of  a  railroad  t-om- 
pany,  with  its  thousands  of  employes,  must,  of  neces- 
sity, be  many,  and,  to  the  uninformed,  intricate.      The 
passenger's  purpose  is  travel  or  transportation  to  a 
given  point,  and  the  railroad  officials  must  supply  the 
details.      Paying  for  the  ticket  the  price  demanded  un- 
der the  tariff  of  charges,  he  has  done  all  required  of 
him  to  secure  his  right  of  transit  over  the  railway  t<. 
the  point  or  station  to  which  he  requested  his  ticket.' 
Nevertheless,  the  courts  have  very  generally  held  that 
a  passenger  is  bound  to  know  certain  regulations  of 
the  carrier.      Among  these  may  be  mentioneil  regula- 
tions fixing  the  running  time  and  stopping  places  for 
trains.'      It  is  also  very  generally  held  that  regulations 
of  a  railroad  company  may  be  waiveil  by  its  duly-au- 
thorized agents.^     In  Pennsylvania,  however,  a  distinc- 
tion is  made,  in  this  respect,  between  regulations  in 
tended  for  the  passenger's  safety  and  those  iinciHhd 
for  his  and  the  carrier's  convenience.      A  conductor, 
it  is  said,  cannot  waive  the  former,  but  he  may  waive 
the  latter.' 

4  South  &  N.  A.  R.  Co.  V.  Huffman,  7G  Ala.  402. 

6  See  post,  §  Hf>;{. 

«  See  po.st,  §§  30G,  307. 

7  Pennsylvania  K.  Co.  v.  Lanplon,  92  Pa.  St.  21;    Doery  v.  Itnllnmi! 

Co.,  163  Pa.  St.  403,  30  Atl.  162. 

((J4:{) 


§    24^  CARRIERS   OF  PASSENGERS.  (Cli.    IV) 

§  248.  PROVINCE  OF  COURT  AND  JURY. 

Where  the  fact^  are  undisputed,  the  reasonableness 
of  a  regulation  of  a  common  carrier  affecting  the  trans- 
portation of  passengers  is  one  of  law  for  the  court,  and 
not  of  fact  for  the  jury.^  The  necessity  for  this  rule 
lies  in  the  fact  that  it  is  only  by  this  method  that  fixed 
and  permanent  regulations  can  be  establislied.  If 
the  question  were  left  to  juries,  one  rule  would  be  ap- 
plied by  them  to-day  and  another  to-morrow.  In  one 
trial  a  railway  would  be  held  liable,  and  in  another, 
presenting  the  same  questions,  not  liable.  Neither 
the  companies  nor  passengers  would  know  their  rights 
or  their  obligations.  A  fixed  system  for  the  control 
of  the  vast  interests  connected  with  railways  would  be 
impossible,  while  such  a  system  is  essential  equally  to 
the  roads  and  to  the  public.^ 

§  248.  1  St.  Louis,  A.  &  T.  Ry.  Co.  v.  Hurdy,  55  Ark.  134,  17  S. 
W.  711;  St.  Louis,  I.  M.  &  S.  Hy.  Co.  v.  Adcock,  52  Ark.  406,  12  S. 
W.  874;  South  Florida  R.  Co.  v.  Rhodes,  25  Fla.  40,  5  South.  G33; 
Gregory  v.  Raihvay  Co.  (Iowa)  G9  N.  W.  532;  Chilton  v.  Railway  Co., 
114  Mo.  88,  21  S.  W.  457.  But  the  question  whether  the  facts  are 
such  in  a  given  case  that  the  regulation  can  be  properly  enforced  may 
be  for  the  jury.  Hoffbauer  v.  Railroad  Co.,  52  Iov\-a,  342,  3  N.  W. 
1210.  But  in  State  v.  Overton  (1854)  24  N.  J.  Law,  435,  and  in  Morris 
&  E.  R.  Co.  V.  Ayers,  29  N.  J.  Law,  393,  it  was  held  that  the  reason- 
ableness of  regulations  made  by  railroad  companies  with  regard  to  the 
conduct  of  passengers  is  a  question  of  fact  for  the  jury.  But  in 
Compton  V.  Van  Yolkenburgh,  34  N.  J.  Law,  134,  Beasley,  0.  J.,  said, 
in  reference  to  these  cases:  '"There  is  no  doubt  that  the  rule  thus 
Intimated  is  in  opposition  to  recent  American  authorities.  *  *  * 
The  submission  of  such  a  question  to  the  jury  appears  on  many 
grounds  objectionable,  and  in  opposition  to  legal  analogies." 

2  lUiaois  Cent.  R.  Co.  v.  Whittemore,  43  111.  420;    Louisville,  N.  &  G. 
S.  R.  Co.  V.  Fleming.  14  Lea  (Tenu.)  128.  144:. 
(G44) 


Ch.   20)  DUTV    Ai    TO    ACCOMMODATIONS.  §    249 

CHAPTER  XX. 

DUTY  AS  TO  ACCOM.MoKATKtNS. 

§  249.  ;Must   1-^iruish   Ko.Tsonalile  AcoomiiiodationB. 

250.  At  Station?. 

251.  During  Transportation— Seats. 

252.  Sanio--Heating  Cars. 

253.  Sleeping  Cars. 

254.  Chair  Cars. 

255.  Separation  of  Passengers  on  Account  of  Sox. 

256.  Separation  of  Passengers  on  Account  of  Color. 

257.  Same— Statutes  Requiring  Separation. 

258.  Same— Statutes  Requiring  Equal  Accoinmodations. 

§  249.     MUST  FURNISH  REASONABLE    ACCOMMODA- 
TIONS. 

A  common  carrier  of  passengers  is  bound  to  fur- 
nish passengers  the  usual  and  reasonable  ac- 
commodations incident  to  the  mode  of  convey- 
ance adopted  by  the  carrier. 

The  contract  of  transportation  iiKludes,  bv  iiii|»li ca- 
tion of  law,  the  ordinary  comforts  incident  to  the  iinKh' 
of  conveyance  adopted  by  the  carrier,  iu  the  abscMUM*  of 
express  stipulations  to  the  contrary.  Statutes  in  soni<' 
of  the  states  expressly  require  tlie  carrier  to  furnish 
reasonable  accommodations  for  passengers,*  and  to  fur 
nish  sufficient  accommodations  for  nil  passrn^ors  rea- 
sonably to  be  expected  to  i(Mjiiiio  (  arrJMizc  :if  any  onr 

§  249.     1  Civ.   Code  Cal.   S  21S4;    Conip.   Ijiws   Dji!;.  §  3S41;    Civ. 
Code  Mont.  1895,  §  2793;   1  Hcv.  St.  S.  C.  1M!I3,  §  171U. 


§  249  CARRIERS  OP  PASSENGERS.  (Ch.  20 

time,^  or  offering  themselves  as  passengers  a  reason- 
able time  before  the  advertised  starting  time  of  the  con- 
veyance.^ These  statutes  are  probably  merely  a  re- 
enactment  of  the  common  law. 

The  supreme  court  of  Illinois  has  recently  held  that 
a  railroad  company  does  not  fulfill  its  duty  to  the  pub- 
lic by  attaching  a  passenger  coach  to  a  freight  train, 
and  the  courts  will  compel  it  by  mandamus  to  run  a 
passenger  train,  where  its  business  will  warrant  the 
expense  of  putting  on  such  a  train. ^ 

2  Civ.  Code  Cal.  §  21S5;  Civ.  Code  Mout.  1895,  §  2895;  Comp.  Laws 
Dak.  §  3893. 

3  Mansf.  Dig.  Arlj.  §  5475;  Rev.  St.  Ind.  1894,  §  5185;  Gen.  St. 
Kan.  1889,  §  1212;  Ky.  St.  1894,  §  783;  1  How.  Ann.  St.  Mich.  §  3324; 
Ann.  Code  Miss.  1890,  §  4306;  Comp.  Laws  N.  M.  1884,  §  2671;  Laws 
N.  Y.  1850,  c.  140,  §  36;  Code  X.  C.  1883,  §  1963;  Sayles'  Civ.  St. 
Tex.  art.  4226.  A  carrier  of  pas.sengers  must  not  overload  his  ve- 
hicle. Civ.  Code  Cal.  §  2102;  Civ.  Code  Mout.  1895,  §  2792;  Comp. 
Laws  Dak.  §  3840.  Every  railroad  corporation  "shall  furnish  suffi- 
cient accommodations  for  the  transportation  of  passengers  and  freight, 
and  shall  take,  transport,  and  discharge  all  passengers  to  and  from 
such  stations  as  the  ti-ains  stop  at,  from  and  to  all  places  and  stations 
on  their  said  road,  on  the  payment  of  fare."  Comp.  Laws  Neb.  1893, 
c.  16,  §  121,  p.  312.  Gen.  St.  Conn.  1,S88,  §  3540,  requires  railroad  com- 
panies, from  the  lat  of  May  to  the  1st  of  November,  annually,  to  carry 
through  each  passenger  car,  once  an  hour,  a  suitable  quantity  of  good 
drinking  water  for  the  free  use  of  passengers,  with  suitable  appurte- 
nances for  carrying  it,  and  a  clean  tumbler  for  using  it.  Laws  N.  Y. 
1864,  c.  582,  requires  railroad  companies  to  furnish  passenger  cars 
with  drinking  water;  and  Code  Ala.  §  1155,  requires  them,  in  addi- 
tion, to  keep  gooa  lights  on  night  trains. 

4  People  V.  St.  Louis,  A.  &  T.  H.  R.  Co.  (III.  Sup.)  45  N.  E.  824.  The 
court  said:  "What  we  hold  is  that  there  cannot  be  a  suitable  and 
proper  operation  of  the  railroad  as  a  carrier  of  passengers  where  the 
car  in  which  it  carries  its  passengers  is  part  of  a  freight  train,  be- 
cause freight  trains  are  inferior  to  passenger  trains,  and  travel  in 
them   is  aUended  with  less  comfort,   convenience,  and  safety   than 

(64G) 


Ch.   20)  DUTY    AS    TO    ACCOMMODATIONS,  §   250 


§  250.     AT  STATIONS. 

The  New  York  court  of  apjx'jils  has  lifl.l  that,  at 
common  law,  a  common  carrier  of  i>ass(Miji('is  aii«l 
freight  is  under  no  obligation  to  i)r()vi(le  di'pois  toi- 
passengers  awaiting  transportation,  nv  wareliouscs  for 
freight.^  But  where  a  station  building  has  been  cicri - 
ed  by  a  railway  company,  to  which  passengers  are  in 
yited  while  waiting  for  trains,  a  common-law  diiiv 
rests  on  the  company  to  proyide  reasonable  ar< oniiiio 
dations  for  those  who  accept  its  invitation."     Thus,  ir 

travel  in  passenger  trains.  The  inferiority  of  a  freight  train  to  a 
passenger  train  as  a  mode  of  carrying  jia.ssengers  is  so  obvions  tli;it 
no  man  of  ordinarj^  understanding  would  regard  tlie  use  of  a  frciulii 
train  for  the  purpose  of  hauling  a  passenger  car  as  a  suitalilc  and 
proper  operation  of  the  railroad  in  the  ii'attcr  of  transporting  pas- 
sengerSv"  it  was  further  held  that,  in  determining  whether  a  rail- 
road's business  is  sutticient  to  require  it  to  run  a  sei»arate  passt-ngcr 
train,  the  court  will  take  into  consideration  the  business  of  the  mad 
as  a  whole,  and  not  merely  of  the  branch  line  on  which  it  runs  md 
passenger  train.  If  the  business  of  the  whole  road  shows  a  large  net 
profit,  it  will  be  compelled  to  run  a  passenger  train  on  the  branch  line, 
which  passes  through  a  fairly  populous  country,  witli  inimcrous  towns, 
ranging  in  population  from  l.:00  to  .j.UUt). 

§  2.")0.  1  People  v.  New  York.  L.  E.  iV:  N\  .  U.  Co.,  li>4  N.  Y.  .".s. 
9  N.  E.  856.  It  was  further  held  tuat  no  such  obligation  is  imiMis  d 
l)y  the  general  railroad  act  of  New  York  (Laws  1850,  c.  140),  or  the 
various  amendments  thereof,  upon  railroad  corporations  orgaid/.c  1 
under  it.  The  supreme  court  of  the  United  States  has  also  held  tliai 
it  rests  entirely  within  the  discretion  of  the  company  as  to  where  it 
is  best  to  locate  its  stations,  and,  in  ilic  abscme  of  a  statute  ur  o(  a 
valid  contract  requiring  the  location  at  a  certain  place,  a  eoml  has 
no  authority,  by  mandanms,  to  compel  its  location  tlicre.  Nnrlin'rn 
I'ac.  R.  Co.  V.  AVashington  Territory,  IfJ  U.  S.  4:f_',  I'J  Sii]..  ri.  js ;. 
reversing  3  Wash.  T.t.  :'.o:!,  i:{  I'a<'.  tJot, 

2  McDonald  v.  Uailr«  ad  Co.,  2G  Iowa.  1-1. 

(CIT) 


§    ^50  CARRIERS   OF   PASSENGERS.  (Ch.    20 

is  the  duty  of  a  railroad  company  to  use  ordinary  care 
in  cold  weather  to  heat  the  passenger  waiting  room  for 
a  reasonable  time  before  the  departure  of  its  trains." 
But  a  carrier  is  not  liable  because  the  agent  at  the 

CI? 

depot  was  cross,  and  refused  to  inform  an  arriving  pas- 
senger of  the  name  of  the  town,  or  where  she  could  find 
an  hotel;  and  because,  on  her  asking  for  water,  he 
merel}^  pointed  to  a  tank  some  distance  away,  or  be- 
cause men  and  boys  around  the  station  jeered  and 
laughed  at  her.* 

In  a  number  of  states  statutes  exist  which  require 
railroad  companies  to  maintain  comfortable  waiting 
rooms  for  passengers  at  stations;  ^  and  in  others  stat- 
utes exist  requiring  railroad  companies  to  keep  the 

3  Texas  &  P.  Ry.  Co.  v.  Cornelius  (Tex.  Civ.  App.)  30  S.  W.  720. 
Snpp.  Sajies'  Rev.  Civ.  St.  Tex.  art.  4238,  -vs-hicli  requires  every  rail- 
road company  to  keep  its  passenger  houses  warmed  for  one  hour  be- 
fore the  arrival  of  trains,  does  not  relieve  it  from  liability  to  a  pas- 
senger vrho  becomes  ill  because  he  had  to  wait  several  hours  for  a 
delayed  train  In  a  cold  station  room,  though  a  fire  may  have  been 
built  within  an  hour  of  the  actual  arrival  of  his  train.  Id.  But  a 
passenger  who  is  informed  that  a  depot  will  not  be  opened  during 
the  night  must  use  reasonable  care  to  protect  herself  from  the  con- 
sequences of  exposure  to  the  inclement  weather  while  waiting  for  a 
train,  and  the  railroad  company  Is  not  liable  for  a  sickness  caused  by 
exposure  which  could  have  been  avoided  by  her  by  the  exercise  of 
reasonable  care.  Texas  &  P.  Ry.  Co.  v.  Pierce  (Tex.  Civ.  App.)  30  S. 
W.  1122.  A  railroad  company  is  liable  to  an  mtending  passenger  for 
injuries  sustained  from  its  failure  to  keep  its  station  open  and  warmed 
in  inclement  weather,  as  required  by  statute.  Boothby  v.  Railway, 
66  N.  H.  342,  34  Atl.  157. 

4  Missouri,  K.  &.  T.  Ry.  Co.  v.  Kendrick  (Tex.  Cix.  App.)  32  S.  W.  42. 
6  Code  Ala.  §  1154;    Rev.  St.  Ind.  1894,  §  5188;    Ky.  St.  1894,  §  772; 

Gen.  Laws  Minn.  1885,  c.  190,  §  1;    Rev.  St.  Mo.  1889,  §  2582;    1  Rev. 
St.  S.  C.  1893,  §  1712. 

(G48) 


Ch.   20)  DUTY    AS  TO    ACCOMMODATIONS.  §   2')1 

ticket  offiee  or  reception  room  open  a  speeifie*!  lenjjth 
of  time  before  the  arrival  and  departure  of  trains.' 

g  251.     DURING  TRANSPORTATION— SEATS. 

There  <an  be  doubt  that  the  contract  of  a  carrier  of 
passengers  by  railway  is  cue  not  only  to  furnish  ih  • 
passenger  with  transportation,  but  also  with  the  com- 
fort of  a  seat.^  So,  a  common  carrier  which  has  agreed 
to  transport  one  of  its  servants  to  and  from  work,  as 
part  of  his  compensation,  cannot,  through  its  train 
officials,  lawfully  recjuire  him  to  vacate  a  seat  in  iIk- 
smoking  car,  to  which  he  has  been  duly  assign. -d, 
though  the  car  has  become  crowded,  and  passengoi*s 
are  without  seats.-  So,  where  all  the  seats  in  the  ordi- 
narv  coaches  of  a  railroad  train  are  filled  with  passen- 
eers,  one  who  has  not  obtained  a  seat  does  not  become 
a  trespasser  by  passing  into  the  drawing-room  rar,  and 
taking  a  seat,  until  seats  in  the  other  ears  are  vacate<l.' 
On  the  other  hand,  a  passenger  has  no  right  to  insist 
on  a  seat  in  a  car  already  filled  with  passengers,  where 

6Ky.  St.  1894,  §  784;  1  How.  Ann.  St.  Mi*h.  §§  .H^VJC.  :m17;  Ann. 
Code  Miss.  §  4313;  Mill.  &  V.  Code  Tenn.  §  2359;  Code  Va.  18S7.  § 
1224;    Code  W.  Va.  1^91,  p.  542,  §  71a. 

§  251.  1  Hardenbergh  v.  Kailway  Co.,  39  Minn.  3,  38  N.  \V.  (".25; 
Memphis  it  C.  R.  Co.  v.  Benson,  85  Tenn.  627,  4  S.  W.  5;  St.  I»uls. 
I.  M.  &  S.  Ry.  V.  Leigli,  45  Ark.  3G8;  Camden  &  A.  R.  Co.  v. 
Hoosey,  99  Pa.  St.  492.  See,  also,  ante,  §  82.  Tbc  duty  to  furnlsl. 
a  seat  is  imposed  by  statute  in  some  of  the  states.  Civ.  Code  Cal.  8 
2185;    Civ.  Code  Mont.  1895,  §  2895;    Conip.  I.mws  Dak.  §  3S<.i4. 

2  New  York,  L.  E.  &  W.  K.  Co.  v.  Burns,  51  N.  ^.  Law.  310.  17  All. 

630. 

3  Thorpe  V.  Railroad  Co.,  76  N.  Y.  402.  alliiuiing  KJ  II>im    <N    ^  '  <<»• 


§    25'  CARRIERS   OF  PASSENGERS.  (Ch.    20 

there  are  vacant  seats  in  another  car,  with  equal  ac- 
commodations.* 

In  order  that  all  passengers  may  obtain  seats,  a  rail- 
road company  has  the  right  to  limit  each  passenger  to 
a  single  seat;  ^  and,  where  such  a  rule  has  been  adopt- 
ed, a  passenger  has  no  right  to  place  his  hand  baggage 
on  one  seat,  and  occupy  another,  though  other  passen- 
gers are  not  thereby  interfered  with.® 

What  are  the  rights  and  duties  of  a  passenger  who 
has  failed  to  obtain  a  seat?  It  is  held  that,  on  learn- 
ing that  he  can  get  no  seat,  after  he  has  gotten  on  the 
ti'ain,  and  it  has  attained  a  high  rate  of  speed,  he  has 
a  right  to  elect  either  to  accept  such  accommodations 
as  are  offered,  and  pay  fare,  or  to  refuse  to  pay  the  fare 
unless  he  can  have  the  accommodations  to  which  a 
passenger  is  entitled.  If  he  elects  the  latter  course, 
then,  inasmuch  as  he  is  not  entitled  to  the  passage 
without  paying  fare,  even  though  no  seat  is  provided 
him,  it  is  his  duty  to  leave  the  train  on  the  first  reason- 
able opportunity  afforded  him,  which  is  the  next  regu- 
lar stopping  place.      He  may  then  bring  his  action  for 

*  Pittsburgh,  C.  &  St.  L.  K.  Co.  v.  Van  Houten,  48  Ind.  90. 

5  Louisville,  N.  O.  &  T.  Ry.  Co.  v.  Patterson,  69  Miss.  421,  13  South. 
697.  Code  Tenn.  1SS4,  §  23(j3,  makes  it  the  duty  of  the  conductor  to 
see  that  no  passenger  occupies  more  room  than  he  pays  for. 

6  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  IMoody,  3  Tex,  Civ.  App.  622,  22  S.  W. 
1009.  A  regulation  of  a  railroad  company  restricting  passengers  to 
the  use  of  one  s,eat  if  the  cars  are  not  crowded,  and  to  the  use  of  half 
a  seat  if  they  are,  and  not  aUowing  the  backs,  of  seats  to  be  turned 
towards  each  other,  and  not  allowing  passengers  to  place  their  bag- 
gage on  seats,  is  a  reasanable  regulation,  and  is  binding  on  a  passen- 
ger, whether  he  knows  of  it  or  not.  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Moody  (Tex.  Civ.  App.)  30  S.  W.  'tii. 

(650) 


•Ch.   20)  DUTY    AS    TO    ACCOMMODATIONS.  §    252 

breach  of  contract,  and  may  recover  as  daniaj^os  siuh 
sum  as  will  compensate  him  for  the  broach,  inchiding 
jBiich  damages  as  are  the  natural  and  iimiKMliate  re- 
sults of  the  breach/  If  he  persists  in  his  refusal  to 
pay  fare,  and  does  not  leave  the  ti'aiu,  and  is  ejected, 
he  cannot  recover  for  the  injuries,  either  mental  oi- 
physical,  consequent  on  the  ejection,  provided  no  ex- 
cessive force  is  used,  but  he  may  still  recover  for  the 
breach  of  contract.* 

§  252.     SAME— HEATING    CARS. 

It  is  the  duty  of  a  railroad  company  to  properly  and 
comfortably  warm  its  coaches  for  its  passeniiors,  and 
especially  so  when  there  are  women  and  cliildnMi  in 
the  cars,  and  their  discomfort  is  made  known  to  the 
conductor  or  brakeman,  and  fires  requested.^     If  a  pas- 

7  Hardehbergh  v.  Railway  Co.,  30  Minn.  3,  38  N.  W.  i;2.-,;  M.-mphis 
&  C.  R.  Co.  V.  Benson,  85  Tenn.  627.  4  S.  W.  5. 

8  St.  Louis,  I.  M.  &  S.  Ry.  v.  Leish,  4r)  Ark.  .•'.r.S.  \  passenRer, 
wlio  refused  to  surrender  his  ticket  until  a  seat  was  procured  for  him. 
secured  a  seat  at  an  intermediate  station.  He  then  tendered  f;ire 
from  the  place  where  he  secured  his  seat,  but  refnsed  to  pay  fare  for 
the  distance  previously  traveled,  or  to  surrender  his  ticket.  Held,  that 
the  conductor  had  a  right  to  eject  him.  Davis  v.  Uailroad  Co.,  T>S 
Mo.  317. 

§  252.  1  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Jlyatt  (Tex.  Civ.  App.)  34 
S.  W.  677.  It  is  the  duty  of  a  railroad  company  to  heat  its  lars  in 
cold  weather  for  the  comfort  of  its  passengers;  and  where  a  pas- 
senger repeatedly  complained  of  the  cold  on  a  cool  Octolier  nlglit,  an. I 
requested  the  conductor  and  brakemen  to  kindle  a  lir.'  in  tiie  stoves 
on  the  car,  and  testifies  tliat  he  idtimately  sulTiTed  a  si-vere  sickness 
as  a  consequence  of  tlie  cold  contnided  on  tlic  jounn'y.  liie  tincstion 
of  defcniaut's  nt  g'.igtiice  is  for  the  jury,  Taylor  v.  Kailn  ad  Co.  (Mo. 
Sup.)  38  S.  W.  304. 

((;5i) 


§  253  CARRIERS  OF  PASSENGERS,  (Ch.  20 

senger  contracts  a  disease  by  the  failure  of  the  carrier 
to  keep  up  fire  in  a  car  in  extremely  cold  weather,  the 
carrier  is  liable.^ 

A  passenger  traveling  by  railroad  in  cold  weather, 
in  a  car  without  a  fire,  is  not  guilty  of  contributory 
negligence,  as  matter  of  law,  because  he  did  not  leave 
the  car  at  some  station,  made  no  effort  to  procure  ad- 
ditional wraps  from  his  trunk  in  the  baggage  car,  took 
off  his  overcoat  at  one  time  to  give  his  wife  the  benefit 
of  the  warmth,  and  wore  inadequate  clothing  to  meet 
the  demands  of  the  climate  and  season.^ 

§  253.     SLEEPING  CARS. 

A  sleeping-car  company  is  bound  to  furnish  a  berth 
to  a  passenger  holding  a  first-class  ticket,  if  he  applies 
for  it  at  the  proper  time  and  in  the  proper  manner, 
offers  the  customary  fare,  and  there  are  vacant  berths 
at  its  disposal.^  But  a  rule  of  a  railroad  company  re- 
quiring a  passenger  to  have  a  first-class  ticket  for  his 
transportation,  before  he  can  be  assigned  to  a  berth 
in  a  sleeping  car,  is  a  reasonable  one,  and  can  be  legally 
enforced.^ 

A  demand  for  a  berth,  and  a  promise  to  furnish  it, 
constitute  a  contract,  the  mutual  obligations  and  prom- 
ises being  a  valid  consideration.  And  it  is  no  excuse 
for  a  sleeping-car  company's  breach  of  contract  to  re- 
serve a  certain  berth  for  plaintiff  that  another  person 

2  Hastings  v.  Railroad  Co.,  53  Fed,  224, 

3  Taylor  v.  Railroad  Co.  (:Mo.  Sup.)  38  S.  W,  304. 
§  253,     1  Nevin  v.  Car  Co.,  1U6  111.  222. 

2  Pullman  Palace-Car  Co.  v.  Lee,  49  111.  App.  75. 
(652) 


Ch.   20)  DUTY    AS    TO    ACCOMMODATIONS.  §    253 

demanded  it  before  plaintiff  presented  himself  to  pay 
for  and  occupy  it,  and  that  there  was  no  otlior  uik.. m 
pied.^  By  selling  a  passenger  a  ticket  good  im-  a  |.ai- 
ticular  berth,  the  company  binds  its.-ir  to  funiish  ih,' 
particular  b(  rth  in  the  car  desiguate<l,  or  at  least  an 
equally  desirable  berth  in  the  same  locality  in  anotluT 
car  of  equal  safety,  comfort,  and  convenience.*  Bill 
a  sleeping-car  company  has  the  right  to  sell  a  whoh' 
section  to  one  person,  and  no  cause  of  action  arises 
from  the  refusal  of  its  conductor  to  sell  the  up[)ei'  berth 
in  such  section  to  another  person,  though  that  berth 
was  in  fact  unoccupied,  and  though  there  were  no 
other  vacant  berths  in  the  car.°  Where  a  sleeping-car 
company  has  reserved  certain  berths  for  passengers 
getting  on  at  a  certain  station,  and  before  the  train 
reaches  the  station  the  conductor  erroneously  sells  one 
of  the  berths  so  reserved,  he  may,  a  reasonable  time  be- 
fore reaching  such  station,  notify  the  passenger  of  his 
error,  and  tender  another  berth  equal  in  accomnnxla- 
tion;  and  the  passenger  has  no  cause  of  action  if  he 
refuses  this,  and  voluntarily  leaves  the  car.'' 

Ordinarily,  a  sleeping-car  company  is  entitled  to  a 
reasonable  time  within  which  to  comply  with  a  j)as- 
senger's  request  that  his  berth  be  made  up  by  i  h<-  por 

8  Pullman  Palace-Car  Co.  v.  Booth  (lex.  Civ.  .Vpp.)  I'S  S.  W.  7i:>. 

*  Pullman  Palace-Car  Co.  v.  Taylor,  05  Ind.  153. 

B  Searles  v.  Car  Co.,  45  Fed.  330.  WlK-ro  a  IhtiIi  in  a  sln-iiiiiK  oar 
has  been  sold  for  occupancy  to  a  certaiu  puiiil,  no  unust'  ol'  action 
arises  for  the  refusal  of  the  conduclor,  l)oforo  that  imliit  Is  rnicin'd,  to 
sell  another  person  a  ticket  eulilliug  him  to  sucii  hcrtli  Iroiii  ihcrf  to 
the  end  of  the  journey.     Id. 

6  Mann  Boudoir-Car  Co.  v.  Dupre,  4  t;.  (".  A.  rih»,  •".»  It- 1.  •;»<:. 


§  253  CARRIERS  OF  PASSENGERS.  (Ch.  20' 

ter/  But  though  the  company's  rules  require  a  per- 
son desiring  to  use  the  berth  as  a  bed  during  the  day- 
time to  purchase  an  entire  section,  yet  where  a  pas- 
senger, on  purcliasing  a  single-bertli  ticket,  informs  the 
conductor  that  he  is  suffering  with  rheumatism,  and 
wants  the  berth  to  lie  down  on  account  of  that  sick- 
ness, he  is  entitled  to  the  use  of  the  berth  as  a  bed  in 
the  daytime.* 

A  sleeping-car  company  imperatively  owes  to  the 
traveling  public  the  duty  of  seeing  that  men  and  wo- 
men who  do  not  occupy  to  each  other  the  relation  of 
husband  and  wife  shall  not  occupy  the  same  berth. 
But  it  has  no  right  to  deny  the  right  to  jointly  occupy 
a  berth  to  a  husband  and  wife.  When  a  berth  is  con- 
tracted for  by  the  husband,  either  with  an  express  un- 
derstanding that  it  is  engaged  for  the  joint  occupancy 
of  himself  and  wife,  or  under  circumstances  that  are- 
not  misleading  within  themselves,  the  refusal  to  per- 
mit such  joint  occupancy,  without  other  reason  than- 
the  difference  of  sex,  would  give  the  injured  party  a 
right  of  action  for  damages,  in  which  might  be  con- 
sidered circumstances  of  insult  and  aggravation  at- 
tending  the  breach.      But  Avhere  a  wife,  traveling  with 

7  Pullman's  Palace-Car  Co.  v.  Ehrman,  65  Miss.  383,  4  South.  113. 
In  tills  case  it  was  held  that  a  passenger  who  requests  that  his  berth 
be  made  up  at  8:30  p.  m.,  and  who  makes  an  angry  demand  on  the 
porter  to  that  effect  when  the  latter  states  that  he  has  some  lunches 
to  serve  first,  has  no  right  of  action  against  the  aleepiug-car  company 
for  the  refusal,  and  for  angry  language  used  by  the  porter,  where  the- 
berth  was  made  up  for  him  at  about  9  o'clock,  though  he  refused  to 
occupy  it  then,  and  remained  in  the  smoking  saloon  all  night. 

8  Pullman  Palace-Car  Co.  v.  Fowlor,  G  Tex.  Civ.  App.  755,  27  S.. 
W.  268. 

(654) 


Ch.   20)  DUTY    AS    TO    ACCOMMODATIONS.  §    254 

lier  husbaud,  pars  for  a  separate  berth,  the  company 
is  not  liable  for  the  acts  of  its  servant  in  coniprllinjr 
her  to  leave  her  husband's  berth,  with  wh.mi  she  re- 
tired during  the  night,  unless  such  servani  in  fact  knew 
that  the  relation  of  husband  and  wife  existed.' 


^  254.     CHAIR  CARS. 

The  payment  of  first-elass  passenger  faro  doos  not  en- 
title one  to  demand  carriage  in  a  car  (M|uip]>f'd  with 
adjustable  reclining  chairs  and  lavatoiy,  ami  scivc'd 
by  a  special  porter.  And  where  a  railroad  company 
furnishes  sufficient  first-class  cars,  with  the  usual  ap- 
pliances and  service,  for  the  accommodation  of  tln.so 
entitled  to  first-class  passage,  and  upon  the  same  train 
carries  a  chair  car  wdiich  furnishes  the  extra  service 
and  accommodations  above  indicated,  it  may  lawfully 
demand  a  reasonable  extra  compensation  of  passengers 
who  from  choice  take  passage  upon  it.^  This  right  is 
not  denied  or  restricted  by  the  statute  which  limits  the 
sum  which  railways  may  charge  for  first-class  passage. 
Nor  does  the  fact  that  a  railway  company  advertises 
that  chair  cars  will  be  run  upon  its  ntad  wan  ant  the 
inference  that  such  cars  are  free  to  all  passengers  un- 
der all  circumstances.^ 

»  Pullman  Palac-e-Car  Co.  v.  Bales,  80  Ti'X.  1211,  If.  S.  W.  is:,. 
§  254.      1  Wrife'lit  v.  Railway  Co.,  78  Cal.  'M'>0,  20  Tac.  74<i;    Hallway 
Co.  V.  Hardy,  55  ArK.  134,  17  S.  W.  711. 
2  Railway  Co.  v.  Hanly,  55  Ark.  134,  17  S.  W.  711. 


§  255  CARRIERS  OF  PASSENGERS.  (Cll.  20 

§  255.     SEPARATION  OF  PASSENGERS    ON  ACCOUNT 

OF  SEX. 

A  regulation  of  a  railroad  company  that  one  car  in 
a  passenger  train  should  be  set  apart,  in  the  first  in- 
stance, for  females  traveling  alone,  or  with  male  rela- 
tiA'es  or  friends,  is  reasonable.  It  tends  to  their  com- 
fort and  security,  and  to  the  preservation  of  good  or- 
der, which  it  is  a  duty  of  a  carrier  of  passengers  to  be 
vigilant  in  seeking.^  Such  a  rule  the  carrier  has  a 
right  to  enforce  even  to  the  extent  of  removing  from 
the  car  a  male  person  who  enters  it  with  no  female  un- 
der his  care,  and  to  use  the  force  requisite  for  that  pur- 
pose.^ 

So,  where  several  railway  companies  have  provided 
in  their  depot  building  in  a  large  city  separate  waiting- 
rooms  for  men  and  women,  a  regulation  that  no  male 
jjassenger,  unaccompanied  with  a  female,  shall  be  al- 
lowed to  enter  and  remain  in  the  women's  room,  is  not 
only  reasonable,  but  absolutely  necessary,  to  enable  the 

§  255.  1  Peck  v.  Railroacl  Co.,  70  N.  Y.  5S7;  Bass  v.  Railway  Co., 
SO  Wis.  450;    Mempliis  &  C.  R.  Co.  v.  Benson,  85  Tenn.  G27,  4  S.  W.  5. 

2  Peck  V.  Railroad  Co.,  70  N.  Y.  587;  Bass  v.  Railway  Co.,  36  Wis. 
450.  But  in  the  last-cited  case  it  was  held  that,  if  a  male  passenger 
enters  the  car  peaceably,  such  entrance  being  neither  barred  nor  for- 
bidden by  the  officers,  this  must  be  regarded,  under  all  the  circum- 
stances, as  equivalent  to  a  license  to  him  to  enter;  and,  if  he  is  thus 
rightfully  in  the  ladies'  car,  no  officer  of  the  train  can  rightfully  re- 
move him  by  force,  at  least  without  offering  him  a  seat  elsewhere. 
In  Long  V.  Home  (1825)  1  Car.  &.  P.  610,  it  was  held  that  where  a 
family  of  four  ladies  take  inside  places  in  a  coach,  saying  they  wish  to 
travel  together,  it  is  a  breach  of  agreement  for  the  carrier  to  separate 
them. 

(Go6) 


Ch.   20)  DUTY    AS    TO    ACCOMMODATIONS.  §    256 

companies  to  discharge  a  duty  they  owe  th.-  public  of 
protecting  females,  while  at  the  depot,  from  violence 
and  insult.^ 


{^  256.  SEPARATION  OF  PASSENGERS  ON  ACCOUNT 

OF  COLOR. 

Before  the  abolition  of  slavery  in  the  Tnited  States 
it  was  held,  even  in  nonslaveholding  states,  that  while 
a  common  carrier  had  no  right  to  refuse  transportation 
to  passengers  on  account  of  color,  yet  he  had  the  right 
to  separate  them  in  his  conveyances,  and  to  assign  to  a 
colored  passenger  accommodations  inferior  to  thost' 
enjoyed  by  a  white  passenger  paying  the  same  fare.' 
It  w^as  said  that  the  natural,  legal,  and  cusiomary  dif- 
ference between  the  white  and  the  black  races  made 
their  separation  as  passengers  in  a  public  conveyance 
the  subject  of  sound  regulation,  to  secure  order,  pro- 
mote comfort,  preserve  the  peace,  and  maintain  the 
rights  both  of  carrier  and  passenger.^ 

After  the  Civil  War,  and  the  adoption  of  the  tliii- 
teenth  amendment  to  the  federal  constitution,  which 
abolished  slavery,  and  the  fourteenth  amendment. 
Which  prohibits  states  from  making  any  law  wliicli 

3  Toledo,  W.  &  W.  Ky.  Co.  v.  Williams,  77  111.  ;^554. 

§  256.  1  Day  v.  Owen  (1S58)  5  Mich.  .".20;  West  Chester  &  P.  U. 
Co.  V.  Miles,  55  Pa.  St.  209.  lu  Uolterts  v.  City  of  Boston.  5  Cusb. 
108,  the  supreme  judicial  court  of  MassachuseUs  held  that  the  fjeueral 
school  committee  of  Boston  had  power  to  make  provislun  for  the  in- 
struction of  colored  children  in  separate  .scIukjIs  esiahllshed  exclu- 
sively for  them,  and  to  prohibit  their  attendance  ui)ou  the  other 
schools. 

2  West  Chester  &  P.  R.  Co.  v.  Miles,  55  I'a.  St.  2(/J. 

V.  1  I'ICT.  CA  li.  I'A.s.  —  I  2  (f'«">7 ) 


§  256  CARRIERS  OF  PASSENGERS.  (Ch.  20 

shall  abridj^e  the  privileges  or  immunities  of  citizens 
of  the  United  States,  or  from  depriving  any  person  of 
life,  liberty,  or  property  vrithout  due  process  of  law,  or 
denying  any  person  the  equal  protection  of  the  laws,  it 
seems  to  have  been  thought  b}'  some  of  the  state  courts 
that  common  carriers  had  no  power  to  separate  passen- 
gers on  account  of  race  or  color.  Thus,  in  1873,  Chief 
Justice  Billon,^  of  the  supreme  court  of  Iowa,  said: 
"A  common  carrier  of  passengers  has  no  authority  to 
enforce  and  establisli  regulations  depriving  colored 
persons  of  the  privileges  and  rights  accorded  to  white 
persons.  These  rights  and  privileges  ^rest  upon  the 
equality  of  all  before  the  law, — the  very  foundation 
principle  of  our  government.  If  the  negro  must  sub- 
mit to  different  treatment,  to  accommodations  inferior 
to  those  given  to  the  white  man,  when  transported  by 
public  carriers,  he  is  deprived  of  the  benefits  of  this 
very  principle  of  equality.  His  contract  with  a  carrier 
would  not  secure  him  the  same  privileges  and  the  same 
rights  that  a  like  contract  made  with  the  same  party 
by  his  vv'hite  fellow  citizen  would  bestow.  This  prin- 
ciple is  enforced  by  the  fourteenth  amendment  to  the 
federal  constitution,  which  declares  that  no  state  shall 
abridge  the  immunities  or  privileges  of  citizens  of  the 

3  Coger  V.  Packet  Co.,  37  Iowa,  145.  Iu>  this  case  it  was  held  that 
a  rule  of  a  steamboat  company  excluding  colored  passengers  from  the 
regular  table,  and  requiring  them  to  take  their  meals  upon  the  guards 
of  the  boat  or  in  the  pantry,  is  not  reasonable,  and  cannot  be  en- 
forced. The  point  decided  in  this  case  goes  no  further  than  to  require 
equal  accommodations.  In  several  other  cases  it  has  been  held  that  a 
carrier  of  passengers  has  no  right  to  exclude  colored  persons  from  its 
cars.  Pleasants  r.  Railroad  Co.  (18GS)  :u  Cal.  586;  Turner  v.  Rail- 
road Co..  Id.  594;    Derry  v.  Lowry,  G  Phila.  30. 

(658) 


Ch.    20)  DUTY    AS    TO    ACCi)MXIOD\TIOXS.  §   256 

Uuited  States,  or  deuy  to  any  iti-rson  Aviihin  its  juris- 
diction the  equal  protection  of  tlie  laws.'' 

In  1875,  congress,  acting  under  tin*  iH.wers  which  it 
conceived  were  conferred  on  it  by  this  aintinlincut, 
passed  what  is  kuown  as  the  ''Civil   liights   IJill,"  * 
which,  in  effect,  declared  tliat  colored  citizens,  whi'thi-r 
formerly  slaves  or  not,  should  have  the  same  accommo- 
dations and  privileges  in  all  inns,  public  cdnvcyances, 
and  places  of  amusement  as  are  enjoyed  by  white  citi- 
zens.     The  constitutionality  of  this  legislation  soon 
came  before  the  federal  courts,  and  was  passinl  on  by 
the  federal  supreme  coui-t  in  what  are  known  as  the 
"Civil  Rights  Cases."  ^     It  was  held  in  these  cases  i  liat 
the  fourteenth  amendment  is  aimed  solely  at  state  ac 
tion,  and  not  at  the  action  of  individuals  not   sanc- 
tioned by  state  legislation  or  the  authoiity  of  the  state. 
"The  wrongful  act  of  an  individual,  unsupported  by 
any  such  authonty,  is  simply  a   piivate  wrong,  or  a 
crime  of  that  individiml,— an  invasion  of  the  rights  of 
the  injured  party,  it  is  true,  whether  they  affect  his  per- 
son, his  property,  or  his  reputation;    but  if  not  sanc- 
tioned in  some  why  by  the  state,  or  not  done  uml.-r  state 
authority,  his  rights  remain  in  full  force,  and  may  hr 
presumably  vindicated  by  resort  to  the  laws  of  tlir 
state  for  redress.     *     *     *     In  all  these  cases,  where 
the  constitution  seeks  to  protect  the^rights  (.f  tin-  citi 
zen  against  discriminative  and  unjust  laws  of  the  state, 
by  prohibiting  such  laws,  it  is  not  indivi.lual  offenses, 
but  abrogation  and  denials  of  rights  which  it  .huouu 
ces   and  for  which  it  clothes  the  congress  with  pnun- 

4  Act  March  1.  1«75,  S§  I,  2.  ^  1<^'.'  I'.  S.  li,  :!  S,,,..  r,.  is. 


§  256  CARRIERS  OF  PASSENGERS.  (Oil.  20 

to  provide  a  remedy.  This  abrogation  and  denial  of 
rights  for  which  the  states  alone  were  or  could  be  re- 
sponsible was  the  great  seminal  and  fundamental 
wrong  which  was  intended  to  be  remedied."  Hence, 
because  this  amendment  conferred  on  congress  no 
power  to  interfere  with  individual  action,  the  act  was 
held  void,  as  relating  to  a  subject  wholly  within  the 
purview  of  state  legislation.  It  was  further  held  that 
the  act  could  not  be  sustained  under  the  thirteenth 
amendment,  abolishing  slavery,  since  the  refusal  to  any 
person  of  the  accommodations  of  an  inn,  or  a  public 
conveyance,  or  a  place  of  public  amusement,  by  any 
individual,  and  without  any  sanction  or  support  from 
any  state  law  or  regulation,  does  not  inflict  upon  such 
person  any  manner  of  servitude  or  form  of  slavery,  as 
these  terms  are  understood  in  this  country.** 

Ever  since  this  decision,  and  even  before  it  was  ren- 
dered, it  has  been  held  that  a  common  carrier,  in  the 
management  of  its  complicated  interests,  may  be  au- 
thorized in  law — on  showing  a  proper  or  sufficient  state 
of  facts  to  establish,  in  the  opinion  of  the  court,  the  rea- 
sonableness of  the  rule — in  setting  apart  one  or  more 
cars  for  the  use  exclusively  of  colored  passengers,  and 
a  like  number,  more  or  less,  as  the  service  may  require, 
for  the  use  exclusively  of  white  passengers;  but  when- 
ever the  company  enforces  such  a  rule  it  is  charged 
with  the  duty  of  furnishing  colored  people,  who  pay 
first-class  fares,  cars  that  are  as  safe  and  comfortable 

6  The  validity  of  this  act  was  repeatedly  denied  by  the  inferior  fed- 
eral courts  before  the  question  was  tinally  set  at  rest  by  the  suineme 
court.     Cully  v.  Itailroad  Co..   1  Hughes,  536,   Fed.  Cas.  No.  3,460; 
U.  S.  V.  Washington,  20  Fed.  630;    Suioot  v.  Railway  Co.,  13  Fed.  337. 
(G60) 


Ch.   20;  DUTY    AS    TO    ACCOMMODATIJNS.  §    256 

ill  tlieir  conditions  and  appointments  as  the  cars  fur- 
nislieil  to  white  passeno;ers  who  pay  first  « lass  fares.* 
Equality  of  aecomniodation,  it  is  said,  does  not  mean 
identity  of  accommodation;  and  it  is  not  unreason- 
able, under  certain  circumstances,  to  se]»arate  white 
and  colored  passen«iers  on  a  railroad  train,  if  attention 
is  given  to  the  requirement  tluit  all  jtaying  the  sajue 
price  shall  have  substantially  the  same  comforts,  priv- 
ileges, and  pleasures  furnished  either  class/  Thus,  it 
has  been  held  that  a  colored  passenger  on  a  steamboat 
who  refuses  to  leave  the  supper  table,  on  objection  be- 
ing made  by  Avhite  passengers,  has  no  right  of  action 
against  the  owner  and  captain  for  the  latter's  act  in  or- 
dering another  table  to  be  set  for  the  other  passengers; 
his  supper  being  served,  and  he  not  being  oblig<Ml  to 
leave  his  table."'  But  a  railroad  company  which  has 
furnished  a  separate  car  for  the  usc^  of  ladies  has  no 
right  to  exclude  therefrom  a  colorcnl  woman,  and  com- 
pel her  to  ride  in  the  gentlemen's  cai-,  or  in  the  smoking 
car,  for  no  other  reason  except  her  color.^° 

7  Houck  V.  Railway  Co.,  38  Fed.  220;  Britton  v.  Railway  Co..  88 
N.  C.  536;  Chilron  v.  Railway  Co.,  114  Mo.  88,  21  S.  W.  457;  Chesa- 
peake, ().  ^:  S.  R.  Co.  V.  AVells,  sr.  Tenn.  613.  4  S.  W.  5;  <:n'eii  v. 
City  of  Bridgctou.  10  Fed.  Cas.  Ki'JO. 

8  Logwood  T.  Railroad  Co.,  23  Fed.  318;  Murphy  v.  Railroad  Co.. 
Id.  637. 

9  MeGuinn  v.  Forbes,  37  Fed.  63i». 

10  Chicago  &  N.  W.  R.  Co.  v.  Williams.  55  111.  IS");  C.iay  v.  Rniln-ad 
Co.,  11  Fed.  (^83.  Steanilxat  owners  (aiiiiot  e.\«iiule  lirst-da.ss  n>l«»ix'(l 
passengers  from  the  first-class  sleeping  <aliin  .set  apart  e.\i-luslvely  for 
white  passengers,  unless  the  sleeping  cabin  fur  colored  puj-scugers  is  hh 
comfortably  fitted  up  and  furnished  as  tliat  for  white  passengers.  The 
Sue,  22  Fed.  843. 


§  257  CARRIERS  OF  PASSENGERS.  (Ch.  20 

§  257.     SAME -STATUTES  REQUIRING   SEPARATION. 

But  quite  recently  the  courts  have  gone  further,  and 
have  held  that  a  state  statute  requiring  common  car- 
riers, under  a  penalty,  to  furnish  separate,  but  equal, 
accommodations  for  white  and  colored  passengers,  are 
a  valid  exercise  of  the  police  power  of  the  state,  and 
will  be  enforced,  so  long  as  it  is  not  applied  to  inter- 
state commerce.  Such  statutes  have  been  enacted  in 
most,  if  not  all,  the  former  slaveholding  states.^  These 
statutes  have  been  upheld  by  the  state  courts,  and  have 
been  construed  by  them  as  not  applying  to  interstate 
commerce,  but  only  to  passengers  traveling  wholly 
within  the  state.'     This  construction  of  the  statutes  is 

§  257.  1  Rev.  Code  Del.  p.  410,  §  3;  Rev.  St.  Fla.  18'. »2,  §  22.38;  Acts 
Ga.  1890-91,  vol.  1,  No.  751,  p.  157;  Ky.  St  1894,  §§  795,  796; 
Ann.  Code  Mias.  1890,  §§  1276,  3562;  Mill.  &  V.  Code  Tenn.  §§  2364. 
2365;  Supp.  Sayles'  Rev.  Civ.  St.  Tex.  art.  4233a;  Acts  La,  1890,  No. 
111. 

2  Louisville,  N.  O.  &  T.  Ry.  Co.  v.  State,  66  Miss.  662,  6  South.  203; 
Ex  parte  Plessy,  45  La.  Ann,  80,  11  South.  948.  Under  Gen.  St.  S.  C. 
§  1494,  which  requires  railroad  companies  to  erect  two  rooms  at  pas- 
senger stations  for  the  accommodation  of  passengers,  and  .'section  1516. 
which  declares  station  agents  to  be  conservators  of  the  peace,  such 
agents,  without  special  direction  from  the  company,  may  publish  ami 
enforce  a  regulation  assigning  two  rooms  of  equal  accommoJations  to 
white  and  colored  persons,  respectively.  Smith  v.  Chamberlain,  38 
S.  C.  529,  17  S.  E.  371.  In  Norwood  v.  Railway  Co.  (Tex.  Civ.  App.) 
34  S.  W.  180,  it  was  held  that  a  colored  person  cannot  recover  against 
a  railroad  company  for  putting  him  in  a  coach  not  furnished  with  the 
comforts  and  conveniences  provided  for  the  coach  for  white  passen- 
gers, as  required  by  statute,  unless  he  has  sustained  actual  damage 
by  reason  thereof.  In  the  absence  of  actual  damages,  he  is  not  en- 
titled to  recover  nominal  damages.  The  statute  requiring  the  fur- 
nishing of  separate  coaches  provides  a  penalty  to  be  recovered  by  the 
state;    and,  unless  special  damages  accrue  to  an  individual  from  its 

(662) 


Cll.    20)  DUTY    AS    TO    ACCOMMODATIONS.  §    257 

I  iiidinji-  on  tlic  federal  courts;  and,  so  construed,  these 
statutes  cannot  be  declared  invalid,  as  violaiiiiL:  that 
clause  of  the  federal  constitution  whicii  ^ives  congress 
sole  power  to  rejiulate  interstate  connnerce.^  Neit  h»r 
do  these  statutes  violate  the  thirteenth  amendment  i<» 
the  constitution,  abolishing-  slavery.  "A  statute  which 
implies  merely  a  legal  distinction  between  the  white 
and  colored  races — a  distinction  which  is  foumh'd  in 
the  color  of  the  two  races,  and  whit  li  niiisl  always  «*>:- 
ist  so  long  as  white  men  are  distinguishcil  from  tho 
other  race  bv  color — has  no  tendencv  to  destrov  the  le- 
gal  equality  of  the  two  races,  or  re-establish  a  state  of 
involuntarv  servitude."*  Xor  do  these  statutes  vio 
late  the  fourteenth  amendment.  ''The  object  of  th.' 
amendment  was  undoubtedly  to  enforce  the  absolute 

violation,  tlie  state  alone  can  sue.  Id.  lUit  a  n(^gi-i>  pa-^senser  may 
recover  for  pain  suffered  by  reason  of  the  failure  of  a  railroad  cnm- 
pany  to  furnish  the  car  set  apart  for  colored  passengers  with  equal 
accommodations  to  those  furnished  for  wliilt>  passengers,  fain  suf- 
fered from  retention  of  urine,  because  of  the  failure  of  a  railroad  com- 
pany to  furnisb  lue  car  set  apart  for  negro  passengers  with  a  water 
closet,  will  enable  a  colored  passenger  to  maintain  an  .utiou  for  dam- 
ages. Henderson  v.  Railway  Co.  (Tex.  Civ.  App.)  38  S.  W.  li:;<; 
The  separate  coach  law  does  not  give  a  riglit  of  action  merely  btn  aiis  • 
equal  accommodations  are  not  furnished  colon>d  passengers,  but  it 
must  appear  that  such  a  pa.ssenger  has  sulTered  some  special  liamag.'s 
by  reason  of  the  unequal  accommodations.  Id.  .V  lailioad  comiiany 
which  has  furnished  a  trail}  with  separai--  <:ir  accommodations  for 
colored  persons,  as  required  by  statute,  caimot  be  convicted  criminally 
for  the  refusal  of  third  jiersons,  who  have  ( liartered  it.  to  p.-rmlt  .ol 
ored  passengers  to  use  the  cars  intended  lor  them.  LoiiisvilU'  A:  .\. 
11.  Co.  V.  Com.  (Ky.)  37  S.  W.  79. 

3  ■Louisville,  N.  O.  &  T.  Ky.  Co.  v.  Mississippi.  i:53  II.  S.  r>.S7.  10  Sup. 
Ct.  348,  aftiriuiug  GG  Miss.  GG'J,  G  South.  li<i::. 

4l'l.-ssy  v.  Ferguson,  l(>i  U.  S.  5:J7.  IG  Sup.  Cl.   lliJS.  allln.iinu    I.". 
La.  Ann.  80,  11  South.  VMS. 


§  257  CARRIERS  OF  PASSENGERS.  (Ch.  20 

equality  of  the  two  races  before  the  law;  but,  in  the 
nature  of  things,  it  could  not  have  been  intended  to 
abolish  distinctions  based  upon  color,  or  to  enforce  so- 
cial, as  distinguished  from  political,  equality,  or  a  com- 
mingling of  the  two  races  upon  terms  unsatisfactory 
to  either.  Laws  permitting,  and  even  requiring,  their 
separation,  in  places  where  they  are  liable  to  be 
brought  into  contract,  do  not  necessarily  imply  the  in- 
feriority of  either  race  to  the  other,  and  have  been  gen- 
erally, if  not  universally,  recognized  as  within  the  com- 
petency of  the  state  legislatures  in  the  exercise  of  their 
police  powers."  "So  far,  then,  as  a  conflict  with  the 
fourteenth  amendment  is  concerned,  the  case  reduces 
itself  to  the  question  whether  the  statute  is  a  reason- 
able regulation,  and  with  respect  to  this  there  must 
necessarily  be  a  large  discretion  on  the  part  of  the  leg- 
islature. In  determining  the  question  of  reasonable- 
ness, it  is  at  liberty  to  act  with  reference  to  established 
usages,  customs,  and  traditions  of  the  people,  and  with 
a  view  to  the  promotion  of  their  comfort,  and  the  pres- 
ervation of  the  public  peace  and  good  order.  Gauged 
by  this  standard,  we  cannot  say  that  a  law  which  au- 
thorizes, or  even  requires,  the  separation  of  the  two 
races  in  public  conveyances  is  unreasonable,  or  more 
obnoxious  to  the  fourteenth  amendment  than  the  acts 
of  congress  requiring  separate^schools  for  colored  chil- 
dren in  the  District  of  Columbia,  the  constitutionality 
of  which  does  not  seem  to  have  been  questioned,  or  the 
corresponding  acts  of  state  legislatures."  ° 

5  Id.     The  court  further  said:    "We  consider  the  underlying  fallacy 
of  plaintiff's  argument  to  consist  in  the  assumption  that  the  enforced 
(6G4) 


Ch.   20)  DUTY    AS    TO    ACCOMMODATIONS.  {j    2oS 


§  258.     SAME— STATUTE  REQUIRING  EQUAL  ACCOM- 
MODATIONS. 

In  mtinY  of  the  yortlieru  states,  and  in  sdnn-  of  iIk- 
Southern  states?,  during  reconstrn*  lion  tinics  and 
shortly  after  the  Civil  War,  statutes  were  passeil  se 

separation  of  tlio  two  races  stamps  the  colored  race  with  a  l>a(l;:<'  of 
inferiority.     If  this  be  so,  it  is  not  by  reason  of  anytliiug  foniul  in  tlio 
act.  but  sohly  liecausc  tlu'  colored  race  chooses  to  put  that  coustruc- 
liou  upon  ir.     The  argument  necessarily  as-umes  that  if.  as  has  more 
Thau  ouce  Vieen  the  case,  and  is  not  unlikely  to  be  so  aRain,  the  col- 
ored race  should  become  the  dominant  power  in  the  state  legislature, 
and  should  enact  a  law  in  precisely  similar  terms,  it  would  thereby 
relegate  the  white  race  to  an  inferior  position,     ^^■e  imagine  that  the 
white  race,  at  least,  would  not  acquiesce  in  this  assumpti.m.     Tbe 
.•irgument  also  assumes  that  social  prejudices  may  be  overcome  by 
legislation,  and  that  equal  rights  cannot  be  secured  to  the  negro  ex- 
cept by  an  enforced  commingling  of  the  two  races.     We  cannot  ac- 
cept this  proposition.     If  the  two  races  are  to  meet  on  terms  of  social 
equality,  it  must  be  the  result  of  natural  aftinities,  a  muiunl  appre- 
ciation of  each  other's  merits,  and  a  voluntary  consent  of  Individuals." 
Mr.  Justice  Harlan  delivered  a  powerful  dissenting  opinion  in  this 
case.     Among  other  things,  he  said:    "It  was  said  in  arginnent  thai 
the  statute  of'Louisiana  does  not  discriminate  against  either  race,  but 
prescribes  a  rule  applicable  alike  to  white  and  colored  citizens.     But 
this  argiunent  does  not  meet  the  difficulty.     Every  one  knows  that 
the  statute  in  question  had  its  origin  in  the  purpose,  not  .so  much  to 
exclude  white  persons  from  railroad  cars  occupied  by  tlie  blacks,  as 
to  exclude  colored  persons  from  coaches  occupied  by  or  a.ssigne«l  to 
white  persons.     Railroad  corporations  of  Louisiana  did  not  make  dis- 
crimination among  whites  in  the  matter  of  accommodation  for  trav- 
elers.    The  thing  to  accomplish  was,  under  the  guise  of  giving  equal 
accommodations  for  whites  and  blacks,  to  compel  the  latt.-r  to  kee]. 
to  themselves  while  traveling  in  railroad  pa-ssenger  coaches.     No  one 
would  be  so  wanting  in  candor  as  to  assert  the  contrary.     The  fun.Ja 
mental  objection  to  the  statute,  therelore.  is  that  it  ini.Tleres  with 
the  personal  fn-edom  of  citizens,      q-ersonal  lilM-rty.'  it  has  U-en  well 
said    'consists  in  the  power  of  locomotion,  uf  cl.unglni;  .sli.iatl.m.  or 


§  258  CARRIERS  OF  PASSENGERS.  (Cll.  20 

cui-ing  to  all  persons,  irrespective  of  color,  the  right  to 
the  full  and  equal  enjoyment  of  the  accommodations 
and  privileges  of  inns,  public  conveyances,  and  places 

removiug  one's  person  to  whatsoever  places  one's  own  inclination  may 
direct,  without  imprisonment  or  restraint,  unless  by  due  course  of 
law.'  1  Bl.  Comm.  134.  If  a  white  man  and  a  black  man  choose  to 
occupy  the  same  public  convej'ance  on  a  public  highway,  it  is  their 
right  to  do  so;  and  no  government,  proceeding  alone  on  grounds  of 
race,  can  prevent  it  without  infringing  the  personal  liberty  of  each." 
"State  enactments  regulating  the  enjoyment  of  civil  rights  upon  the 
basis  of  race,  and  cunningly  devised  to  defeat  legitimate  results  of 
the  war,  under  the  pretense  of  recognizing  equality  of  rights,  can  have 
no  other  result  than  to  render  permanent  peace  impossible,  and  to 
keep  alive  a  conflict  of  races,  the  continuance  of  which  musi  do  harm 
to  all  concerned.  This  question  is  not  met  by  the  suggestion  that 
social  equality  cannot  exist  between  the  white  and  the  black  races  in 
this  country.  That  argument,  if  it  can  be  properly  regarded  as  one. 
is  scarcely  worthy  of  consideration;  for  social  equality  no  more  ex- 
ists between  two  races  when  traveling  in  a  passenger  coach  or  a  pub- 
lic highway  than  Avhen  members  of  the  same  races  sit  by  each  other 
in  a  street  car  or  in  the  jury  box,  or  stand  or  sit  with  each  other  in 
a  political  assembly,  or  when  they  use  in  common  the  streets  of  a  city 
or  town,  or  when  they  are  in  the  same  room  for  the  purpose  of  having 
their  names  placed  on  the  registry  of  a  oters,  or  when  they  approach 
the  ballot  box  in  order  to  exercise  the  high  privilege  of  voting." 
"The  arbitrary  separation  of  citizens,  on  the  basis  of  race,  while  they 
are  on  a  public  highway,  is  a  badge  of  servitude  wholly  inconsistent 
with  the  civil  freedom  and  the  equality  before  the  "law  established  by 
the  constitution.  It  cannot  be  justified  by  any  legal  grounds.  If 
evils  will  result  from  the  conmiingling  of  the  two  races  upon  public 
highways  established  for  the  beuetit  of  all,  they  will  be  infinitely  less 
than  those  that  will  surely  come  from  state  legislation  regulating  the 
enjoyment  of  civil  rights  upon  the  basis  of  race.  We  boast  of  the 
freedom  enjoyed  by  our  peojile  above  all  other  peoples.  But  it  is 
difficult  to  reconcile  that  boast  with  a  state  of  the  law  which  practi- 
cally puts  the  l)rand  of  servitude  and  degradation  upon  a  large  class 
of  our  feUow  citizens,— our  equals  before  the  law.  The  thin  disguise 
of  'equal'  accommodations  for  passengers  in  railroad  coaches  will  not 
mislead  any  one,  nor  atone  for  the  wrong  this  day  done." 
(66G) 


('h.   20)  DUTY    AS    TO    ACCOMMODATIONS.  §   258 

of  amusement.'  It  was  held  by  the  fe<lei;il  supreme 
court  that  such  a  statute  is  void,  so  far  as  it  ai>i»lies  to 
interstate  commerce.-  But  such  statutes,  under  the  re- 
cent decisions  above  mentioned,  would  certaiiil.v  seem 
to  be  a  valid  exercise  of  the  police  power  of  i  In-  states, 
if  confined  to  commerce  within  the  states.  It  has  also 
been  held  that  an  act  of  con«;ress  giving  a  railroad  com 
pany  the  right  to  construct  its  road  in  the  District  of 
Columbia,  with  a  proviso  that  no  person  shoidd  be  ex- 
cluded from  the  cars  on  account  of  color,  is  binding  on 
the  compau}^  after  it  has  acted  on  the  grant;  and  sm  Ii 
legislation,  enacted  in  1803,  is  not  satistie<l  by  settiiiu 
apai't  a  car  for  the  use  of  colored  passengers,  but  re 
quires  the  company  to  carry  them  in  the  same  cai's  in 
which  white  passengers  are  caiTied.^ 

§  258.  1  McClain's  Code  Iowa,  §§  5386,  5387;  I.aws  .Minn.  ISSo.  <•. 
224,  §  1  (Gen.  St,  1894,  §  8002);  Comp.  St.  Neb.  18I>3,  p.  1283,  c.  14a,  S 
1;    Laws  N.  Y.  1881,  c.  400. 

2  Hall  V.  De  Cuir,  [)o  U.  S.  485,  reversing  De  Cuir  v.  Buu-son,  27  La. 
Ann.  1. 

3  Railroad  Co.  v.  Brown,  17  Wall.  445.  Under  Act  Ta.  .March  22. 
1867  (P.  L.  38),  which  prohibits  railroad  companies  from  oxchidin;,' 
colored  persons  from  trains,  or  from  setting  apart  cars  for  their  usf. 
the  mere  fact  that  a  colored  person  was  excluded  from  a  particiilnr 
car  in  the  train  is  not  sufticiont  to  sustain  a  recovery  of  the  penalty 
provided  by  the  act,  but  it  must  appear  that  the  exclusion  was  on 
account  of  race  and  color.  Central  K.  Co.  v.  Green,  86  Pa.  St.  421. 
This  penalty  is  given  by  way  of  punishment  to  the  (iffrnder,  nilhiT 
than  by  way  of  compensation  to  the  person  aggrieved;  ami  where, 
therefore,  two  colored  per.sons,  husliand  and  wife,  are  e.xduded  from 
a  car  at  the  same  time  and  by  the  same  employe,  a  recovery  in  riglii 
of  llie  wife  bars  a  recovery  by  the  husband,  on  liie  principle  liiiii 
penal  statutes  must  be  strictly  construed.  Id.  A  eulnre*!  passenger, 
accompanied  l>y  hi.s  family,  who  liad  pnicliaseil  tickets  on  a  steainlMiai 
entitling  him  to  Ijcrlhs,  rcviuested  thai  the  berths  be  exchanged  for  u 

((il>7) 


§218  CARRIERS   OP  PASSENGERS.  (Ch.    20 

Stateroom.  On  the  refusal  of  the  otHcers  to  do  so,  he  demanded  a 
return  of  his  passage  money,  which  was  refunded,  and  he  voluntarily 
left  the  boat.  Held,  that  there  was  no  evidence  of  discrimination  on 
account  of  color;  that  after  having  sold  their  berths  to  plaintiff,  and 
he  having  secured  them,  defendant  was  not  bound  to  rescind  the  con- 
tract, and  buy  back  the  berths,  and  run  the  risk  of  selling  them  over 
again.  Miller  v.  Steamboat  Co.,  58  Hun,  424,  12  N.  Y.  Supp.  301,  af- 
firmed   Vio  N.  Y.  (jlL',  32  N.  E.  645. 

(6G8) 


Ch.  21)  FARES.  §  259 


CHAPTER  XXI. 

FAKES. 

^  2r.9.  Right  to— Reasonableness. 

2(J0.  State  Regulation. 

2G1.  Same— Of  Street-Raihvay  Fares  by  City. 

262.  Same — Interstate  Commerce  Act. 

263.  Same— Penalty  for  Excessive  Fare. 

264.  Same— Free  Passes  to  Public  Officers. 

265.  Same-^Sale  of  Tickets  by  Scalpers. 

266.  Mode  of  Payment. 

267.  Time  of  Payment. 

268.  Higher  Train  Fare, 

269.  Same— Reasonable  Opportunity  to  Pun-liase  Ticket 

270.  Same— Excessive  or  Unreasonable  Train  Fare. 

271.  On  Freight  Trains. 

272.  Free  Pass— Contract  for. 

273.  Remedies  of  Carrier  for  Nonpayment. 

274.  Recovery  F.ack  by  I'assenger. 

§  259.     RIGHT  TO— REASONABLENESS. 

At  common  law,  a  common  carrier  has  the  right 
to  charge  a  reasonable  compensation  for  the 
transportation  of  passengers  and  property,  but 
he  must  not  unjustly  discriminate  against  any 
person  or  place. 

As  a  matter  of  course,  a  common  carrier  is  entitled 
to  compensation  for  his  services  in  transport!  n-;  either 
property  or  persons.  In  cases  of  cori)()rati<)iis,  no  ex- 
press grant  of  power  is  necessary  to  (M.nrci-  i  li«'  i'iliIii  to 
charge  and  collect  compensation  for  sii.li  scivi.-.s.  I.iii 
such  right  is  implied  In.m  llio  jiiitliority  to  cii^a-r  in 

HWJ) 


§  2G0  CARRIERS  OF  PASSENGERS.  (Ch.  21 

the  business  of  carrying.^  The  only  limitation,  at 
common  law,  on  the  carrier's  power  to  make  charges, 
is  that  they  must  be  reasonable,^  and  that  he  must  not 
unjustly  discriminate  against  particular  persons  and 
localities/ 

g  260.     STATE  REGULATION. 

A  state  legislature  has  the  power  to  fix  rates  for 
the  transportation  of  passengers  and  property 
by  railw^ays,  in  the  absence  of  a  charter  con- 
stituting a  contract  with  the  corporation,  pro- 

§  259.  1  Boyle  v.  Railroad  Co.,  54  Pa.  St.  310;  Pennsylvania  R.  Co. 
V.  Sly,  65  Pa.  St.  205,  211. 

2  In  Interstate  Commerce  Commission  v.  Railroad  Co.,  145  U.  S.  263. 
12  Sup.  Ct.  844,  it  was  said  that,  prior  to  the  enactment  of  the  inter- 
state commerce  act,  "railway  ti-afflc  in  this  country  was  regulated  by 
the  principles  of  the  common  law  applicable  to  common  carriers,  which 
demanded  but  little  more  than  that  they  should  carry  for  all  persons 
who  applied,  in  the  order-  in  which  goods  were  delivered  at  a  particu- 
lar station,  and  that  charges  should  be  reasonable." 

3  In  Atwater  v.  Railroad  Co.,  48  N.  J.  Law,  55,  2  Atl.  803.  it  was 
said :  'At  this  day  it  would  be  superfluous  to  enter  upon  a  discussion  to- 
support  the  doctrine,  so  well  settled,  that  common  carriers  are  public 
agents  transacting  their  business  under  an  obligation  to  observe  equal- 
ity towards  every  member  of  the  community,  to  serve  all  alike,  with- 
out giving  any  unjust  or  unreasonable  advantages  by  way  of  facilities- 
for  the  carriage  or  rates  for  transporting  them."  In  this  case  it  was- 
held  that  a  railroad  company,  chartered  as  a  carrier  of  passengers  and 
fi'eight,  is  under  no  obligation  to  establish  commutation  rates  for  a 
particular  locality;  but  when  it  has  established  such  rates,  and  com- 
mutation tickets  are  sold  thereat  to  the  public,  the  refusal  of  such  a 
ticket  to  a  particular  individual,  under  the  same  circumstances  and 
upon  the  same  coiulitions  as  such  tickets  are  sold  to  the  rest  of  the 
public,  is  an  uuju:-.t  discrimination  against  him,  and  a  violation  of  the 
principle  of  equality  which  the  company  is  bound  to  observe  in  the- 
conduct  of  its  business. 

(C70) 


Ch.  21)  FARES.  §  2G0 

vidad  that  what  is  done  does  not  amount  to  a 
regulation  of  forei^^n  or  interstate  commerce; 
and  the  extent  of  judicial  interference  is  pro- 
tection against  unreasonable  rates. 

In  Mimu  y.  Illinois,^  the  supreme  court  of  tlie  I'nitetl 
States  hiid  down  this  broad  j)rin«.ii»le:  "Pr<»]K*iiy 
does  become  clothed  with  a  iniblic  interest  whiu  iiscd 
in  a  manner  to  make  it  of  public  eouseqiu'iicc,  and  af- 
fect the  community  at  large.  When,  therefore,  one  de 
votes  his  proi^ertv  to  a  use  in  which  the  public  has  an 
interest,  he,  in  effect,  grants  to  the  public  an  iiiter(»st 
in  that  use,  and  must  submit  to  be  controlled  bv  the 
public  for  the  common  good,  to  the  extent  of  the  inter- 
est he  has  thus  created.  He  may  withdraw  his  grant 
by  discontinuing  the  use;  but,  so  long  as  he  maintains 
the  use,  he  must  submit  to  the  control."  h  was  ;ic 
cordingh  held  that  the  legislature  of  Illinttis  liad  the 
power  to  regulate  the  charges  for  the  storage  of  grain 
in  the  elevators  and  warehouses  in  that  state.  In  <  Mii- 
cago,  B.  &  Q.  E.  Co.  v.  Iowa,-  decided  at  the  same  time, 
it  was  further  held  that  railroad  companies,  being  en- 
gaged as  common  carriers  in  a  public  emph>ynieut  af- 
fecting the  common  interest,  are  subject  to  legislative 
control  as  to  their  rates  of  fare  and  freight,  unless  pro- 
tected by  their  charters.  Since  these  decisions  have 
been  rendered,  it  has  become  the  settled  law  (»f  iliis 
country  that  the  legislature  of  a  state  lias  power  to 

§  2G0.  1  94  U.  S.  113.  In  this  case  it  is  said  tliat  in  J-.n;:lan(i  tin- 
chartres  of  common  cnnicrs  liave  been  rejiulated  by  slainic  since  the 
reife'n  of  William  and  Mary. 

2  04  U.  S.  15.J. 

(<:71) 


§  260  CARRIERS  OF  PASSENGERS.  (Ch.  21 

prescribe  the  charges  of  a  railroad  com  pan}'  for  tlie 
carriage  of  iDassengers  and  merchandise  within  its  lim- 
its, in  the  absence  of  any  provision  in  the  charter  of 
the  company  constituting  a  contract  vesting  in  it  au- 
thority over  those  matters,  subject  to  the  limitation 
that  the  carriage  is  not  required  without  reward,  or 
upon  conditions  amounting  to  the  taking  of  property 
for  public  use  witliout  compensation,  and  that  what  is 
done  does  not  amount  to  a  regulation  of  foreign  or  in- 
terstate commerce.^  In  most,  if  not  all,  the  states,  a 
constitutional  provision  at  present  exists  reserving  to 
the  state  the  power  to  alter,  repeal,  or  amend  char- 
ters of  corporations,  or  the  laws  under  which  they  are 
organized.  Under  such  a  constitutional  reservation, 
the  legislature  has  the  power  to  regulate  the  charges 
for  the  carriage  of  passengers,  without  impairing  the 
obligation  of  any  contract,  provided  the  regulations 
are  not  so  unreasonable  as  to  work  injustice  to  the 
corj^oration.*     In  many  of  the  states,  laws  have  ac- 

3  Georgia  Railroad  &  Banking  Co.  v.  Smitli,  128  U.  S.  274,  9  Sup.  Ct 
47;  Ciiicago  &  G.  T.  Ky.  Co.  v.  Wellman,  143  U.  S.  339,  12  Sup.  Ct. 
400;  Storrs  v.  Railroad  Co.,  20  Fla.  617,  11  South.  226.  A  statute  re- 
quiring railroads  operating  in  this  state  to  issue,  at  a  certain  rate,  mile- 
age books  entitling  the  holder  to  "travel  one  thousand  miles  on  the 
lines  of  such  railroad,"  is  intended  to  make  such  mileage  books  good 
■only  for  passage  between  points -in  the  state,  and  therefore  does  not,  as 
regards  railroads  extending  beyond  the  state,  interfere  with  interstate 
commerce.  Beardsley  v.  Railroad  Co.,  15  App.  Div.  251,  44  N.  Y. 
Supp.  175,  affirming  40  N.  Y.  Supp.  1077;  Dillon  v.  Railroad  Co.,  19 
Misc.  Rep.  116,  43  N.  Y.  Supp.  320. 

4  St.  Louis  &  S.  F.  Ry.  Co.  v.  Gill,  54  Ark.  101,  15  S.  W.  IS;  St. 
Louis  &  S.  F.  Ry.  Co.  v.  Ryan,  56  Ark.  245,  19  S.  W.  839.  See,  also, 
Hinckley  v.  Railway  Co.,  38  Wis.  194;  Attorney  General  v.  Chicago  & 
:s'.  W.  Ry.  Co.,  35  Wis.  4:.'5.     In  the  absence  of  such  a  reservation  of 

(072) 


Cll.   21)  FAKKS.  §   2G0 

cordingly  been  passed  fixino-  tlie  maximum  rate  of  fare 
for  passengers  at  a  certain  sum  per  iuil(\'  in  oiliers, 
railroad  commissions  have  been  created,  with  |>o\vrr  lo 
tix  a  schedule  of  rates.  It  has  been  licl.l  iluit  ilir  .on- 
ferring  of  this  authority  on  the  commissiiui  is  Udi  void 
as  a  delegation  of  legislative  or  jiKliciji!  powers  to  a 
body  not  authorized  to  exercise  tJKMu."  So,  congress 
has  power,  in  the  ease  of  railroad  comiianics  which 

power,  liowever,  the  charter  of  a  raiho.-ul  coiniiany  is  a  luiiiract  Im-- 
tweeu  tlio  state  and  the  coinijany:  ami  the  rej^uhiliou  by  thi"  U';L;ishilun' 
of  Charlies  for  freijrht  and  passeni^ers  impairs  the  ol»li;,'ation  of  thai 
contract,  within  tlie  meaning  of  tlie  federal  eonstinninn.  and  is  void. 
PhihKlelphia,  W.  &  B.  R.  Co.  v.  Bowers.  4  Houst.  (Del.)  50G. 

i>  Between  two  and  three  ('(>nts  per  mile,  accordinj;  to  tlu'  gross 
earnings  of  each  company.  1  How.  Ann.  St.  Mich.  §  li:i2:\.  sultd.  !•. 
Three  cents  ])er  mile.  Pub.  Gen.  Laws  Md.  art.  23,  p.  353,  §  170;  Conip. 
St.  Neb.  1803,  c.  72.  art.  9.  §§  1,  2;  Rev.  St.  Ohio  1SJ)0.  §  3374:  Sayles' 
Civ.  St.  Tex.  art.  42.J8b,  §  9.  Three  and  one-half  cents,  McClain's 
Code  Iowa  188S,  §  20(>n.  Between  three  and  four  cents  per  mile, 
according  to  classification  of  roads.  Rev.  St.  Mo.  ISSii.  s  2<!73.  Si\ 
cents,  Comp.  Laws  N.  M.  1884,  §  2721.  Gen.  St.  Conn.  ISSS.  g  3r>2i;. 
requires  railroad  companies  to  charge  for  Sunday  travel  the  highesi 
regular  fare  charged  on  week  days,  and  prohibits  connuutation  tickets 
on  that  day.  Under  Act  Ohio  March  30,  1875,  whicli  limits  the  maxi- 
mum fare  for  passengers  on  railroad  trains  to  thrtv  cents  ])er  mile, 
"for  a  distance  of  more  than  eight  miles,  provided  the  fare  shall  al 
"ways  be  made  th.it  multiple  of  live  nearest  reached  by  multiplying  the 
rate  by  the  distance,"  a  railroad  company  has  the  rigid  to  charge  in 
least  25  cents  for  any  distance  greater  than  eiglit  miles;  and  for  a 
distance  less  than  eight  miles  any  rea.sonaltle  sum  not  exe<M'ding  25 
cents  may  be  charged.  Railroad  Co.  v.  Skillman.  .3!)  Ohio  St.  4^1. 
Rev.<Civ.  Code  La.  1880.  art.  27.'.:;.  inovidt-s:  '"I'jif  prl<r  nf  pass:ige 
agreed  to  be  paid  by  a  woman  for  going  by  sc.i  fiom  om-  eoiinlry  to 
another  shall  not  hi  increased  in  case  the  woman  luis  .i  rliild  during 
the  voyage,  wlietlier  her  i)regnancy  was  known  or  not  l»y  llie  master 
of  the  ship." 

e  Storrs  v.  Railroad  Co.,  20  Fla.  i;i7.  1 1  S.Milh.  22i;. 

V.  1  FET.C.Mt.PAS. 4"  (073) 


§  260  CARRIERS  OF  PASSENGERS.  (Ch.  21 

have  received  land  grants  from  the  federal  government, 
to  fix  the  rates  for  transporting  soldiers  of  the  regular 
army  at  one-half  the  amount  charged  by  the  company 
for  its  usual  passengers,  in  the  absence  of  the  violation 
of  any  vested  rights,  or  of  any  showing  that  the  rate 
fixed  by  congress  is  unreasonable.^ 

On  the  question  whether  the  rates,  as  fixed  by  the 
commission,  are  reasonable,  the  courts  cannot  inter- 
fere to  substitute  their  judgment  for  that  of  the  com- 
missioners, when  there  is  room  for  a  difference  of  in- 
telligent opinion  on  the  question  whether  the  rates  will 
prove  remunerative  to  the  company;  but  the  tariffs, 
as  fixed  b}^  the  commissioners,  must,  in  so  far  as  the 
courts  are  concerned,  be  left  to  the  test  of  experiment. 
If  the  test  of  such  experiment,  however,  demonstrates 
that  the  rates  fixed  by  the  commissioners  do  not  pay 
the  operating  expenses  of  the  road,  an  abuse  of  discre- 
tion is  shown,  and  such  rates  will  be  held  invalid,  as  a 
taking  of  the  railroad  company's  property  without  just 
compensation.* 

In  some  of  the  states  there  is  a  provision  against  un- 

7  Atlantic  &  P.  R.  Co.  v.  U.  S..  7G  Fed.  180. 

8  reiisaeola  &  A.  R.  Co.  v.  State.  2.5  Fla.  319,  .1  South.  8:?.S.  In  Ohio 
it  has  been  held  that  the  question  whether  a  rate  is  reasonable  is  for 
the  jury,  and  not  tUe  court,  whenever  the  hearing  of  testimony  is  neces- 
sarj-  to  deteriiiiue  the  question.  Smith  v.  Railway  Co.,  23  Ohio  St.  10, 
Whether  or  not  Act  Mich.  .Tune  28,  1889,  §  9  (Pub.  Laws  1889,  pp. 
282,  283),  fixing  a  maximum  two-cent  rate  of  fare  for  passenger  travel 
on  railroads,  the  gross  earnings  of  whose  passenger  trains  exceeded 
$3,000  per  mile  for  the  preceding  year,  is  unreasonable,  will  not  be  de- 
termined in  a  friendly  suit,  where  it  does  not  appear  in  what  the 
operating  expenses  of  the  road  consist.  Chicago  &  G.  T.  Ry.  Co.  v. 
Wellman.  143  U.  S.  339,  12  Sup.  Ct.  400. 

(G74) 


Ch.  21)  FARES.  §  2G1 

reasonable  discrimiiuitioii  in  the  transportation  of  pas- 
sengers and  freight. ''  Under  sni-h  a  statnte/"  it  has 
been  held  tliat  tlie  fart  tluit  certain  stnchiits  ;ir.-  per 
mitted  to  purchase  season  tickets  at  half-faic  rates  (h»rs 
not  constitute  an  unjust  discriniinatidu  against  an- 
other student,  similarly  situated  with  the  fa\iir<'<l  sin- 
deuts,  who  has  paid  full  fare  fer  his  season  licUci ;  and 
he  cannot  recover  the  excess  from  the  company.'* 

§  261.     SAME— OF  STREET-RAILWAY  FARES  BY 

CITY. 

Since  street-railway  companies  are  permitte<l  to  use 
the  public  streets,  and  along  their  tia<ks  have  a  liglii 
of  way  on  which  they  are  entitled  to  preference  ovei* 
other  vehicles  passing  along  the  streets,  it  ne<'essaiily 
follows  that  the  general  regulation  and  control  of  such 
railways  are  under  the  police  powers  in  the  city  gov- 
ernment, and  the  municipality  may  enact  all  reason- 
able rules  for  that  purpose.^  Hence,  also,  the  legis- 
lature has  powder  to  regulate  its  rates  of  fare,  and  it 

9  MiUs'  Ann.  St.  Colo.  p.  3i52,  §  4!M1;  ron.st.  Ky.  S  VM  (St.  1S04.  p.  l.'W). 
1  How.  Ann.  St.  .Mich.  §  341(5,  auihoiizes  railroad  c'oiiii»anl«'s  lo  make 
contracts  for  the  conveyance  of  passengers  on  designated  iiains.  for  a 
specific  distance,  at  fixed  times,  at  reduce<l  rates.  Such  ticUeis  shall 
not  entitle  the  liolder  to  ride  on  any  train  not  tlierein  designated,  or  at 
any  time  beyond  tliat  stipulated  tlierein. 

10  St.  Mass.  1874-75,  p.  391,  c.  37:.'.  §  l."5S.  wliicli  re«iuires  railroad 
companies  to  carry  all  persons  on  •  reasdiiatilr  ami  iMiual  terms." 

11  SpoltVinl  V.  Railroad.  T_'S  Mass.  :V2i>. 

§  2(n.  1  Sternberg  v.  State.  3(1  .Neb.  .307,  ."4  N.  W.  .".."..•.:  Soiiih  Civ- 
ington  &  C.  St.  Ry.  Co.  v.  Berry,  i>3  Ky.  J."!,  is  S.  \V.  Kn'i;;  State  v. 
Inliabitants  of  Trenton.  .^.3  N.  .T.  I.au.  ITS,  i:n  .Ml'.  KiTC;  St.  l.uuls  v. 
Railroad  Co.,  S!»  .Mo.  44.  1  S.  \V.  .Xi'.. 

((175) 


§  261  CARRIERS  OF  PASSENGERS.  (Ch.  21 

may  confer  siuh  power  upon  munici])alities.^  Gener- 
ally, the  power  to  regulate  these  companies  is  expressly 
reserved  by  the  cities  in  grants  to  them  of  the  right  to 
nse  the  streets.  Under  a  reservation  of  power  to  fix 
fares,  the  city  may  require  tickets,  6  for  25  cents,  to 
be  kept  for  sale  by  each  conductor  of  a  street  ( ar.^  But 
an  ordinance  limiting  the  fare  of  street  railwavs  to  five 
cents  does  not  require  a  company  to  carry  to  his  desti- 
nation, for  a  single  fare,  a  passenger  who  boards  a  car 
which  goes  only  part  of  the  way,  and  then  diverges,  but 
it  may  charge  him  another  fare  when  he  enters  the  con- 
necting car,  though,  if  he  had  taken  that  car  in  the  first 
instance,  he  could  have  gone  through  for  one  fare/ 
So,  an  ordinance  granting  a  franchise  to  a  street-rail- 
way company,  authorizing  it  to  charge  persons  resid- 
ing in  a  distant  section  of  the  citv  double  the  fare  it 
may  charge  persons  residing  in  other  portions,  is  not 
invalid,  as  an  unreasonable  discrimination  in  favor  of 
common  carriers;  and  a  passenger  residing  in  the  pro- 
hibited district  may  be  expelled  for  refusal  to  pay  th'^ 
double  fare.^ 

2  Dean  y.  Railway  Co.,  64  111.  App.  1G5. 

3  Sternberg  v.  State.  30  Neb.  307,  54  X.  W.  ."..j3.  In  this  case  it  was 
said:  "A  street  railway  has  no  depots.  Its  stopping  places  are  on 
each  street  corner,  and  it  transacts  its  business  with  the  public  in  its 
cars,  and  its  ticlvets  should  be  kept  on  sale  where  it  transacts  its  busi- 
ness with  the  public." 

4  Ellis  V.  Railroad  Co.,  07  ^^'is.  135,  30  N.  W.  218. 

5  Robira  v.  Railroad  Co..  4.j  La.  Ann.  1308.  14  South.  214;  Forman 
V.  Railroad  Co.,  40  La.  Ann.  440,  4  South.  240;  Dc^  L-cas  v.  Railroad 
Co.,  38  La.  Ann.  930. 

(670) 


Cll.  21)  FAKES.  §   2i>2 


g  262.      SAME— INTERSTATE    COMMERCE  ACT. 

On  February  4,  1S87,  ((Hiiiress,  uiulor  tlio  power  con- 
ferred on  it  by  the  eoniiuerce  clause  of  the  fcMh-ral  con- 
stitution, empowerinu  it  to  rejLiulate  coniinci-cc  wiih 
foreign  nations,  and  auiou^i;  the  several  stales,  |.;iss.m1 
what  is  known  as  the  "Interstate  Comnu'rce  Act."' 

§  2G2.  1  24  Stat.  379.  The  provisions  of  this  act.  so  far  as  aiii>ll«n))h' 
to  carriers  of  passeujrers.  are  as  follows: 

"Section  1.  *  *  *  All  cliarires  for  any  service  rcndcrcil  in  tlie 
transportation  of  passengers  or  property  as  aforesaid,  or  in  connection 
therewith,  or  for  the  receiving:,  delivering,  storage,  or  handling  of  sucli 
property,  sliall  be  reasonable  and  just:  and  evciy  nnjiist  and  unrea- 
sonable charge  for  such  service  is  prohibited  and  declared  unlawful. 

'•See.  2.  That  if  any  common  carrier  subject  to  tlie  provisions  of 
this  act  shall,  directly  or  indirectly,  by  any  special  mte.  rel»ate.  dnnv- 
back.  or  other  device,  charge,  demand,  collect,  or  receive  from  any  per- 
son or  persons  a  greater  or  less  compensation  for  any  service  render- 
ed or  to  be  rendered  in  the  transportation  of  passengers  or  property, 
subject  to  the  provisions  of  this  act,  tlian  it  c-harges.  demands,  col- 
lects, or  receives  from  any  otlier  person  or  persons  for  doing  for  him 
or  them  a  like  and  contemiwraneous  service  in  tlie  transportation  of  .i 
like  kind  of  traffic  under  substantially  similar  circumstances  and  con- 
ditions, such  conmion  carrier  shall  be  deemed  guilty  of  unjust  dis- 
crimination, which  is  hereby  proliibited,  and  declare«l  to  be  unlawful. 

'•Sec.  o.  That  it  sliall  be  unlawful  for  any  common  carrier  sul»ject  to 
the  provisions  of  this  act  to  make  or  give  any  imdue  or  mircasonubl.- 
preference  or  advantage  to  any  particular  per.son,  coini>any.  linn,  or 
locality,  or  any  particular  description  of  traffic,  in  any  respe<t  w^.at.so 
ever,  or  to  subject  any  particular  person,  comiiauy,  linn,  .-orporatlon, 
or  locality,  or  any  particular  description  of  trallic.  m  .•my  undue  or  un 
reasonable    prejudice    or    disadvantage    in    any    rcspc.i    whatsncver. 


*    >ii    * 


"Sec.  4.  That  it  shall  be  unlawful  for  any  .-ommon  carrier  s\ibj«vi 
to  the  provisions  of  tliis  act  to  charg.'  or  receive  any  greater  cmiK'n 
sation  in  the  aggregate  for  th..  trans,„.itaiinn  of  passengers  or  of  like 
kind  of  property,  under  substantially  similar  .in  un.stances  an.!  con 

(<m7) 


§  262  CARRIERS  OF  PASSENGERS.  (Ch.  21 

This  act,  among  other  things,  requires  all  charges  made 
for  any  services  rendered  or  to  be  rendered  by  railroad 
companies  in  the  transportation  of  persons  and  prop- 
erty to  be  reasonable  and  just;  prohibits  unjust  dis- 
crimination, wliich  is  defined  to  be  charging  one  per- 
son more  than  another  for  similar  services  in  the  trans- 
portation of  persons  and  property;  prohibits  greater 
charges  for  hauling  a  shorter  than  for  a  longer  distance 
over  the  same  line  in  the  same  direction;  and  creates 
a  commission  for  the  enforcement  of  its  various  provi- 
sions. Section  22,  however,  permits  indigent  persons, 
ministers  of  the  gospel,  and  railroad  officials  or  em- 
ployes to  be  transported  free  of  charge. 

The  supreme  court  of  the  United  States  has  said  that 
the  principal  objects  of  the  interstate  commerce  act 
were  to  secure  just  and  reasonable  charges  for  trans- 
portation; to  prohibit  unjust  discrimination  in  the 
rendition  of  like  services,  under  similar  circumstances 
and  conditions;  to  prevent  undue  or  unreasonable 
preferences  to  persons,  corporations,  or  localities;  to 
inhibit  greater  compensation  for  a  shorter  than  for  a 

ditions,  for  a  shorter  than  for  a  longer  distance  over  the  same  line,  in 
the  same  direction,  the-  shorter  heing  included  within  the  longer  dis- 
tance; but  this  shall  not  be  construed  as  authorizing  any  common 
carrier  within  the  terms  of  this  act  to  charge  and  receive  as  great  com- 
pensation for  a  shorter  as  for  a  longer  distance.    *    *    *" 

"Sec.  22.  Nothing  in  this  act  shall  apply  *  *  *  to  the  issuance  of 
mileage,  excursion,  or  commutation  passenger  tickets;  nothing  in  this 
act  shall  be  construed  to  prohibit  any  common  carrier  from  giving  re- 
duced rates  to  ministers  of  religion;  nothing  in  tliis  act  shall  be  con- 
strued to  prevent  railroads  from  giving  free  carriage  to  their  own  of- 
ficers and  employes,  or  to  prevent  the  principal  officers  of  any  rail- 
road company  or  companies  from  exchanging  passes  or  tickets  with 
other  railroad  companies  for  their  officers  and  employes." 

(678) 


Ch.  21)  FARES.  §  2G2 

longer  distance  ov<m-  tlic  same  line;    aii<l    lo  aliMlisU 
combinations  for  the  pooling  of  frcigln.       Ii   was  not 
designed,  however,  to  prevent  eonipetiiioii  iM'twccii  .lif- 
ferent  roads,  or  to  interfere  with  llic  cusioniai-.v  ar 
rangements  made  bv  railroad  com  panics  for  reduced 
fares  in  consideration    '  increased  mih-age,  where  sucli 
reduction  does  not  operate  as  an  unjust  <liscrimin:ition 
against  other  persons  traveling  over  ilie  snnie  load. 
In  other  words,  it  was  not  intendeii  to  ignorj-  ilie  pi  in 
cijDle  that  one  can  sell  at  wliolesale  clieajter  than   lie 
■can  at  retail.      In  order  to  constitute  an  unjust   dis 
crimination,  the  carrier  must  cliarge  «>r  i-ecei\ c  diieci  Iv 
from  one  person  a  greater  oi-  less  compeiisaiion  ilmn 
from  anotlier,  or  must  acconi])lish  the  same  ihing  in 
directly  bj  means  of  a  special  rate,  rebate,  or  other  d 
vice;    but  in  eitlier  case  it  must  be  for  a  "like  ami  «  on 
temporaneous  service  in  the  transportation  ol   a   liUe 
kind  of  traffic,  under  substantially  similar  ciicumstan 
ces  or  cjnditions."  -     Hence  it  was  held  that  a  railroad 
company  may  issue  and  sell  a  i)arty-i-ate  ticket,  good 
for  ten  or  more  persons,  at  a  lower  price  per  cajtil  a  t  h:i  n 
a  single  ticket  for  a  single  ])assenger. '      So,  the  pio\  i 
sion  against  unjust  discrimination  is  not  vi<dated  by  a 
sale  of  "limited"  hi'st-class  tickets  foi-  a  less  laic  ih;ii. 
"unlimited"   first-class   tickets;    the    dilVeieuce    being 
that  the  holder  of  an  uidimited  tirst-class  ticket  is  en 
titled  to  stop-over  privileges,  wiiile  the  hohler  (»r  a  lim 
ited  ticket  must  make  a  coutinm»us  journey.'       ilui  un 

2  Interstate  Coiiuucrcc  Coiniiiissiuii  v.  K;iilni.i<l  ('>>  ,  1  IT.  I  .  S.  "Jt:."..  \- 
Sup.  Ct.  844,  affinuiiif,'  -i'-i  I''<mI.  37. 

3  Id. 

*  U.  S.  V.  Kj;aii,  47  I'cd.  112. 


§  2G3  CARRIERS  OF  PASSENGERS.  (Ch.  21 

der  this  act  a  railroad  company  lias  no  right  to  issue 
passes,  or  carry  any  person  free  of  charge,  so  long  as 
the  same  privilege  is  denied  to  any  other  person  "un- 
der substantially  similar  circumstances  or  conditions"; 
and  section  22  of  the  act,  which  permits  the  free  car- 
riage of  emplo3'^s  of  a  railroad,  by  necessary  implica- 
tion forbids  the  free  transportation  of  the  families  of 
employes."  The  act,  however,  does  not  prohibit  the 
Issuance  of  railway  passes  upon  a  moneyed  or  other  val- 
uable consideration,  but  only  prohibits  free  transjiorta- 
tion.® 

§  263.     SAME— PENALTY  FOR  EXCESSIVE  TARE. 

A  statute  giving  a  penalty  to  the  party  aggrieved  by 
a  railroad  company's  charge  of  fare  in  excess  of  the 
maximum  prescribed  by  law  is  not  in  contravention  of 
the  constitution.^  But,  under  such  a  statute,"  only 
one  penalty,  together  with  the  excess  of  fare,  can  be  re- 
covered for  all  acts  committed  prior  to  the  commence- 
ment of  the  action.  The  penalty  is  not  given  as  a  sat- 
isfaction for  the  injury  received.  That  is  fully  satis- 
fied b}^  a  return  of  the  sum  extorted,  with  interest. 

5  Ex  parte  Koehler.  31  Fed.  315.  The  act  is  violated  wliere  a  rail- 
road official,  as  a  matter  of  personal  favor,  issues  a  free  pass  for 
transportation  from  one  state  to  another  to  a  person  not  within  the 
exception  of  section  22  of  the  act  (24  Stat.  3S7);  i.  e.  indigent  persons, 
ministers  of  the  gospel,  or  railroad  officials  and  employes.  In  re 
Charge  to  Grand  .Jury.  6G  Fed.  146. 

6  Curry  v.  llailway  Co.  (Kan.  Sup.)  48  Pac.  579. 

§  263.  1  Cincinnati.  S.  &  C.  K.  Co.  v.  Cook,  37  Ohio  St.  265,  uphold- 
ing Act  Ohio  April  2U,  1874  (71  Ohio  Laws,  p.  146). 

2  Laws  X.  Y.  1857,  c.  185,  which  provides  for  a  penalty  of  $50  in  fa- 
vor of  a  passenger  who  has  been  overcliarged  by  a  railroad. 
(680) 


Ch.  21)  KAnhs.  §  2(io 

But  it  is  oiven  to  compensate  the  party  injuivd  for  his 
expenses  in  the  ])rosecuti(>n,  and  to  cunipt'l  the  jtay- 
ment  of  such  a  sum  by  the  company  viohitin^  the  law 
as  will  effectually  stop  the  praetice.^  The  faet  that 
plaintiff  took  passa<j;e  simply  for  the  imipose  i)f  It.-inu- 
charged  the  excessive  fare,  and  <»f  briii.uiiii:  an  art  inn 
for  the  penalty,  does  not  defeat  his  ri.uht  to  it/  Not- 
is  it  any  defense  to  an  action  for  such  a  penalty  tli;it 
the  overcharge  was  made  through  a  mistake  :is  to  the 
distance  between  stations  on  defendant's  load  bci  wcimi 
which  plaintiff  traveled.  It  is  the  company's  duty  to 
know  the  distance  between  the  stations  on  iis  i-oMii/ 
But  an  honest  mistake  by  the  conductor  in  making 
change  for  a  passenger,  without  an  intention  of  t;ikini: 
an  amount  greater  than  is  lawful,  does  not  subject  the 
company  to  the  statutory  penalty  for  an  oven  liaiu''  oi' 
fare.®  A  champertous  agreement  between  idaiutilT 
and  his  attorney  in  an  action  to  recover  a  statutory 
penalty  f(U'  charging  an  excessive  fare  is  not  a  cause 
for  abating  the  action.^      The  New  York  statute  to  pi-e- 

3  Fislier  v.  Ilailroad  Co..  4(j  N.  Y.  (;-t4. 

4  Fislicr  V.'  Railroad  Co.,  4G  X.  Y.  G44:  Railway  Co.  v.  Siuitli.  r,u  Ark. 
221.  2'.»  S.  W.  752;  Railway  Co.  v.  (iill.  .".4  Ark.  lul.  l.'i  S.  W.  is 
P>ut  the  penalty  for  refusal  to  jjive  a  transfer  to  "any  passt'ujri'r  dt'sir 
injr  to  make  one  eontinuous  trip"  lietween  any  two  points  on  a  strct't- 
raihoad  system  cannot  be  recovered  by  one  who  demanded  a  tninsf.-r 
with  the  sole  object  of  recovering  for  a  refusal.  lie  did  not  ih-sirc  lo 
make  a  continuous  trip  between  two  points  on  tiic  conneciiiin  lint's. 
His  whole  purpose  was  not  to  be  transferred  at  tin-  point  wIum-c  lie 
made  his  demand.  Myers  v.  Railroad  Co..  Hi  App.  l>lv.  li:',o,  41  N.  V. 
Sui)p.  7!)8. 

-o  Railway  Co.  v.  Smiili.  r.e  \vk.  221.  2;>  S.  \V.  7:.2. 
c  Railway  Co.  v.  Clark.  .'S  Ark.  4!t0,  25  S.  W.  .Mil. 
7  Railway  Co.  v.  Smitli,  <;<»  Ark.  221.  2'.i  S.  W.  7.V2.    .ludyment  r..r  llu' 

();S1) 


§  263  CARRIERS  OF  PASSENGERS.  (Cll.  21 

vent  extortion  by  railroad  companies  does  not  apply 
to  street  railroads,  whose  fare  for  the  transportation  of 
passengers  is  fixed  or  regulated  by  contract  with  th;^ 
city  authorities  bestowing  the  grant.** 

statutory  penalty  for  an  alleged  overcharge  of  fare  is  not  a  bar  to  an 
action  by  the  passenger  for  his  wrongfnl  ejection  from  the  train  be- 
cause of  his  refusal  to  pay  the  alleged  overcharge.  St.  Louis  &  S.  F. 
Ky.  Co.  V.  Trimble,  M  Ark.  3.j4,  I.j  S.  W.  899. 

8  Moneypenuy  v.  Railroad  Co.,  7  Rob.  (N.  Y.)  .328;  Hoyt  v.  Rail- 
road Co.,  1  Daly  (X.  Y.)  .')28.  The  New  York  general  railroad  act 
of  IS.jO,  which  confers  on  existing  railroad  companies  all  powers  and 
privileges  conferred  on  railroad  companies  to  be  organized  under  it, 
enables  railroads  theretofore  ci-eated  by  special  charter  to  charge  a 
fare  of  three  cents  per  mile,— the  fare  prescribed  by  the  general  law.— 
thougli  the  charter  limits  it  to  a  smaller  sum.  Johnson  v.  Railroad 
Co.,  49  N.  Y.  4.">."),  reversing  2  Sweeney  (N.  Y.)  298.  Where  a  domes- 
tic company  organized  under  Laws  N.  Y.  1860,  c.  70.3,  as  amended  by 
Laws  N.  Y.  18()9,  c.  722,  which  does  not  prescribe  any  limit  as  to 
fares,  is  opei'ated  by  a  foreign  corporation  under  a  lease,  it  must  ap- 
pear that  the  domestic  corporation  was  afterwards  organized  under 
the  general  railroad  act  of  18.j0,  and  its  amendments,  prescribing  the 
rate  of  fare,  before  the  lessor  is  liable  for  the  penalty  prescribed  by 
that  act  for  extortion.  I'alni  v.  Raih-uid  Co.,  .58  X.  Y.  Super.  Ct.  r>02. 
12  N.  Y.  Supp.  5.14.  ( )n  motion  to  set  aside  the  service  of  a  sunnnous 
on  the  ground  that  tlie  action  is  for  a  penalty  given  by  statute,  and 
that  a  copy  of  the  complaint  was  not  delivered  to  defendant  with  the 
copy  of  the  sunnnous  sei'ved,  as  required  by  Code  Civ.  Proc.  X.  Y.  § 
1897,  an  averment  on  information  and  belief  in  tlie  moving  atlldavits 
as  to  the  nature  of  the  action  is  insufficient,  without  stating  the  source 
of  information  or  the  grounds  of  belief.  Delisser  v.  Railroad  Co..  20 
Civ.  Proc.  R.  312,  14  X.  Y.  Supp.  382.  Laws  X.  Y.  lS.-)7,  c.  185.  which 
provides  that  a  passenger  charged  an  excessive  fare  may  recover  a 
penalty  of  !?50,  gives  a  right  of  action  only  to  the  person  aggrieved, 
-and  not  to  a  common  informer;  and  hence  the  snnuuons  need  not  be 
served  by  the  sheriff,  as  required  liy  Code  Civ.  Proc.  §  1895,  in  actions 
by  common  informers  for  penalties.  C^uade  v.  Railroad  Co.,  .59  X.  Y. 
Super.  Ct.  479,  14  X.  Y.  Supp.  875.  In  such  action,  an  objection  that 
the  summons  was  not  served  by  the  proper  person  can  only  be  made 
(GS2j 


Ch.  21)  FAKES.  §  2G4 


§  264.     SAME— FREE    PASSES    TO    PUBLIC    OFFICERS. 

Quite  recently  the  issuance  of  free  passes  to  piblic 
ofticei's  has  been  forbidden  by  statntorv  (»i-  coiisiitti- 
tional  provisions  in  various  states.'  It  has  bt-cii  lu'ld 
that  even  a  notaiT  public  is  a  public  otlicer,  witliin  the 
meaning  of  a  constitutional  inhibition  a,i:aiiisi  ili.- 
transportation  of  any  "public  officer"  on  a  lice  i»;iss; 
and,  tliotigli  he  rightfully  receivecl  the  free  pass  before 
the  constitution  went  into  effect,  yet  he  is  prohibited 
from  thereafter  using  it  while  he  continues  to  hold  i  h-- 
ofiice.^  Btit  the  railroad  commissioners,  in  tJie  dis- 
charge of  their  official  dnties,  nuiy  travel  on  passes 
signed  by  the  secretary  of  state,  requiring   railntad 

on  motion  to  set  aside  tlie  service,  and  is  waived  by  ansnerin?.  Aimer 
V.  Railroad  Co..  20  Civ.  Proc.  R.  818.  14  X.  Y.  Supp.  :i(;.-,.  Rut  in 
Burlie  V.  Railroad  Co.,  15  N.  Y.  Supp.  14S.  it  was  held  tliat  an  allejia- 
tion  in  the  answer  that  the  summons  was  not  ijrojierly  served  nnist  he 
speeifieally  pleaded  as  a  defense,  and  must  he  sei)arately  stati-il  .md 
numbered.  Under  the  United  State.s  internal  revenue  aet  of  18U4  d.". 
Stat.  28(j),  which  imposed  a  tax  of  214  per  cent,  on  the  ^n-oss  receipts 
of  railroad  companies,  and  authorized  tliem  to  ad<l  it  to  their  rates  of 
fare,  a  street-railway  coini)any,  limited  to  a  five-cent  fare  liy  its  char- 
ter, cannot  cliar.ije  a  six-cent  fare,  since  the  proi>ortiou:il  amount  of  liie 
tax  on  each  passenger  is  only  a  fraction  of  a  cent.  Rlacii  v.  Railn>;id 
Co.,  1  Daly  (N.  Y.)  .-..i'i. 

§  2M.  1  Rev.  St.  l-'la.  18!)2,  §  2(i8'.);  ("oust.  Ky.  S  I'.iT  (C.-u.  St.  1S!M. 
p.  1.3S);  Rev.  St.  Mo.  1889,  §§  :J8H:{,  :JS(!4;  Const.  .\".  V.  IS'.C.  art.  1.'.. 
§  .5.  Rev.  St.  Fla.  1892,  §  2091,  al.so  proliihits  iln-  issii.-iii.c  i>f  sm-h 
passes  to  delegates  to  political  conventions.  Ann.  Cnilr  .Mi.ss.  S  12.".ii. 
malies  it  a  misdemeanor  for  :iiiy  public  olliiial  tn  iiavd  (»n  railio;ids 
Avitliout  paying  full  fare.  I'lib.  St.  .\.  11.  IS'.U.  p.  I.VJ.  SS  .''i  7.  pro- 
hibit the  issuance  of  free  passes  exiM'jii  to  rallnad  olllclals  and  iK)or 
.persons. 

2  People  V.  Rathbone,  145  N.  Y.  4:; I.   In  N.  K   -Au:,. 

(US.J) 


§  2G5  '   CARRIERS  OF  PASSENGERS.  (Ch.  21 

companies  to  carry  them  without  charge,  as  provided 
by  statute.-^ 

But  a  public  officer  traveling  on  a  free  pass  issued  by 
a  street-railroad  company  is  estopped,  in  an  action  for 
injuries  caused  by  the  negligence  of  the  company,  from 
setting  up  that  the  pass  was  void  under  the  constitu- 
tion, prohibiting  the  issuance  of  free  passes  to  public 
officers,  and  that  the  conditions  attached  to  its  accept- 
ance and  use  were  consequently  inoperative.* 

§  265.     SAME— SALE  OF  TICKETS  BY  SCALPERS. 

If  a  business,  as  that  of  common  carrier,  is  a  proper 
subject  of  police  regulation,  so  are  its  incidents  aud 
accessories;  as,  for  example,  the  issue  and  sale  of 
transportation  tickets.'  A  statute  which  require? 
railroad  companies  to  issue  tickets  only  through  au- 
thorized agents  appointed  in  a  particular  manner,  and 
which  prohibits  the  transfer  of  tickets  by  purchasers 
who  fail  to  use  them,  but  requires  their  redemption  by 
the  railroad,  is  not  unconstitutional,  as  depriving  the 
purchaser  of  his  property  without  due  process  of  law. 
The  ticket  is  not  destroyed  or  taken  from  the  holder, 
nor  is  his  right  to  ride  on  it  at  all  limited.  The  only 
limitation  is  on  his  right  to  transfer  it.  A  man  has  no 
constitutional  right  to  insist  that  these  contracts  for 
transportation  shall  be  transferable.  Neither  is  such 
a  statute  unconstitutional  as  "class  legislation,"  grant- 

3  Laws  X.  Y.  1SS2,  c.  3.'.:;;    In  re  Board  of  Railroad  Com'rs,  11  Misc. 
Rep.  103.  82  N.  Y.  Su])i..  111.",. 

4  Muldoon  V.  Railway  Co.,  10  Wash.  .311,  38  Tac.  On.j. 
§  2(!.j.    1  State  V.  Corbett,  .57  IMiiiu.  34r>,  59  X.  W.  317. 

(084) 


Ch.  21)  FARKS.  §  •2iti\ 

ing  special  privileiies  to  carriers,  nor  as  a  tl (^legation  of 
the  police  power  of  the  state  to  urani   licenses  t(»  m 
gage  in  bnsiness,  or  as  an  inicrrcrence  with  intcrsiare 
commerce." 

Bnt  a  sale  of  a  raili'oad  tickcl  ]>y  a  seal])!-!-,  if  \;ili<l 
in  the  state  where  made,  is  valid  cvcrvwlicri';  and  t  lie 
railroad  company  cannot  refnse  to  cariv  a  passt-ngcr 
on  this  gronnd  after  he  comes  into  ;i  sintc  where  the 
sale  of  tickets  by  scalpers  is  prohibitc'd. ' 

In  case  of  a  lawful  sale  of  a  ticket  by  ;i  biokci-.  lie 
does  not  from  the  sale  alone  undertake  for  anyjliing 
beyond  the  genuineness  of  the  ticket;  and  therefore  the 
broker  is  not  liable  to  the  purchaser  for  the  carrier's  re 
fusal  to  transport  him  on  any  ground  other  than  the 
genuineness  of  the  ticket.* 

§  266.     MODE  OF  PAYMENT. 

Fare  must,  of  course,  be  paid  in  leual-tender  money. 
Suppose,  however,  that  a  de])reciatioii  in  ;i  certain  kind 
of  money  takes  place;  must  a  railroad  coniimny,  w  husc 
rates  of  fare  are  fixed  by  statute,  accept    tiic  drjuv 
dated  currency  at  its  face  vahu',  or  niiiy  it  e\;iri   jiay 
ment  in  the  kind  of  money,  or  its  e(|ni\  nicnt,  mn-i'iii 
at  the  time  its  rates  were  fixed?      In  view  of  liif  move 
ment  in  this  country  for  the  free  coinage  ol'  sihci-  ;ii 
less  than  its  commercial  value,  this  (|nestion  Mi;iy  .rase 
to  be  one  of  purely  s])ecnlati\('  interest    in   ihi-   near 

2  state  V.  Corbett,  oT  Minn.  :!4.1,  ."V.t  N.  W.  :;i7.  <iiiisiniiu;;  haws 
^linn.  1893,  c.  'K!.  See,  also,  Fry  v.  Si.iic  r:.',  I  ml.  ."..'._':  Uiinlick  v. 
I'tople.  140  111.  (iOO.  'Mi  X.  K.  J»4S. 

3  Sleei.fci-  V.  Hnilro.Md  Co.,  100  Tii.  St.  •_'.";>. 

4  Elstou  V.  Fieldiiuiii.  'u   .Minn.  70,  .">S  .\.  W.  S.".0. 


§  266  CARRIERS  OF  PASSENGERS.  (Ch.  21 

future.  Only  two  decisions  touching  this  question 
seem  to  ha^  e  been  reported.  Both  are  b^'  inferior 
courts  in  New  York,  and  they  are  squarely  in  conflict. 
In  Moneypenny  y.  Kailroad  Co.^  it  was  held  that  if  a 
city  railroad  company  secures  a  charter  allowing  it  to 
receive  a  five-cent  fare  for  each  passenger  at  a  time 
when  specie  is  the  lawful  currency,  and  subsequently 
the  general  government  issues  a  paper  currency,  which 
enhances  the  value  of  the  original  fare,  the  company 
will  be  justified  in  enhancing  the  fare  to  six  cents,  if 
paid  in  paper.  But  in  Lewis  v.  Kailroad  Co.^  it  was 
held  that  a  railroad  company  is  bound  to  accept  United 
States  notes,  issued  in  pursuance  of  the  legal-tender 
acts  of  congress,  at  the  value  expressed  on  the  face  of 
them,  in  payment  of  fare  upon  its  road;  and  if  it  ex- 
acts payment  of  the  legal  fare  from  a  passenger,  in  ad- 
vance, in  gold  or  silver  coin  of  the  United  States,  it 
will  be  guilty  of  extortion,  and  liable  to  the  penalty 
imposed  by  statute  for  asking  and  receiving  a  greater 
rate  of  fare  than  allowed  by  law.  The  probabilities 
are  that  the  courts,  especially  if  reconstructed  by  the 
party  in  favor  of  the  free  coinage  of  silver  at  less  than 
its  commercial  value,  would  ultimately  hold  that  rail- 
road companies  are  bound  to  accept  all  legal-tender 
monev  at  its  face  value. 

A  railroad  company  is  under  no  obligation  to  trans- 
port a  passenger  who  has  innocently  purchased  his 
ticket  with  counterfeit  money,  and  may  eject  him  from 
the  train  if  he  refuses  to  rectify  the  wrong.^      But  so 

§  266.     1  7  Rob.   (N.  Y.)  328. 

2  49  Barb.  (N.  Y.)  330. 

3  Memphis  &  C.  R.  Co.  v.  Chastine,  54  Miss.  .503. 


Ch.  21)  FARES.  §  '2m 

loiiir  Hs  a  iieimine  silver  coin  is  worn  onlv  l»v  lumual 
iibrasion,  is  not  appreciably  diniinislit'd  in  wriuln.  ami 
retains  the  ap])earauce  of  a  coin  duly  issinMl  Iritm  ilu- 
mint,  it  is  a  leual  tender  for  car  fare  lo  ilir  i-Mcin  i\\' 
its  orii!,inal  valne;  and,  if  ejected  for  refusal  lo  makf 
any  other  i)aynient,  llio  passeujier  may  iiaxc  an  a«ii<tii 
for  dama«»es.*  It  is  the  duty  cd"  a  ticket  a.^'Ut  to  ex- 
ercise reasonable  care  in  deliveriiii:  a  ticket  to  liic  juir- 
chaser;  and  if  the  ]»urcliaser,  after  applyiuu  for  his 
ticket,  and  pnttiniidown  money  to  i)ay  for  it.  is  called 
away,  it  is  no  delivery  to  ]»ut  the  ti(  ket  <ui  the  conutei- 
in  his  absence,  if  it  did  not  in  fact  come  into  his  p(»s- 
session," 

A  passeniier  on  a  street  car  need  not  tender  the  ex- 
act fare,  but  he  must  tender  a  reasomible  sum,  aii<l  i  he 
carrier  must  accept  such  tender,  and  must  furnish 
change  to  a  reasonable  amount.  The  stiitreme  court  of 
California  has  held  that  the  tender  of  a  tive-dollar  uohl 
piece  in  payment  of  a  five-cent  fare  is  a  reas(uialde  len 
der.**      But  the  New  York  court  of  appeals  has  recent  ly 

4  Jersey  City  &  B.  K.  Co.  v.  Moi-fran.  52  N.  J.  I-iw.  f^K  is  ,\tl.  ;kH. 
So,  a  genuine  silver  coin  of  tlie  United  Stales,  (listiufrnislialile  as  such, 
tlioucli  somewiiat  rare,  and  diflVrin},'  in  apix-'iHiUici'  fnmi  otlier  c-olns 
of  tliis  government,  of  lilie  denomination  and  of  later  .i.itc.  is  lu-vfi- 
thele.ss  a  legal  tender  for  car  fare;  and  a  passenger  ejected  for  refusal 
to  malie  payment  otlierwise  than  by  tendering  such  a  coin  is  entitled  to 
an  action  for  damages.  That  a  eon.liicior  .ledined  to  receiv.-  a  .tiin 
of  tills  c-liaracter,  Iteoause  lie  in  good  faitli  believed  It  w.is  a  .•ountvr- 
feit,  will  not  relieve  the  railroad  company  from  liability.  .Vtlania 
•  Consol.  St.  Ky.  Co.  v.  Ke<'ny  (Ca.l  2".  S.  K.  C.J'.i. 

6  Qniglev  V.  Kailroa<l  Co.,  5  Sawy.  107.  Ked.  Cns.  So.  \\.:>\*l 
6  Barrett  v.  llailuay  ('<..,  «1  Cal.  •_".«;.  "Jli  IMc  S.V.I.    The  tender  of  a 
five-dollar  gold  piece  in  i.ayin.-nt  of  a  live-cent  fare  by  a  pa^senuer  oi. 

(bS7| 


§  2C6  CARRIERS  OF  PASSENGERS.  (Cll.  21 

held  that  a  rule  of  a  street-railroad  company  requiring 
the  conductor  to  furnish  change  to  passengers  to  the 
amount  of  two  dollars  is  reasonable  as  matter  of  law, 
that  the  tender  of  a  five-dollar  bill  in  payment  of  a  five- 
cent  fare  is  not  a  valid  tender,  and  that  a  passenger  who 
declines  to  pay  fare  except  with  such  a  bill  may  be 
ejected,  though  he  was  ignorant  of  the  rule.^ 

.A  passenger  on  a  street  car,  who,  by  mistake,  places 
in  the  fare  box  more  money  than  is  necessary  to  pay 
his  fare,  is  entitled  to  have  the  error  corrected  in  the 
car;  and  a  rule  of  the  company  refjuiring  him  to  make 
his  claim  at  the  office  of  the  company  is  unreasonable. 
Where  another  passenger  hands  her  fare  to  him,  it  is 
entirely  reasonable  for  him  to  retain  it  for  the  purpose 
of  reimbursing  himself.*  So,  where  a  conductor,  by 
mistake  in  making  change,  returns  to  a  passenger  too 
much  money,  and  afterwards  informs  the  passenger  of 
the  mistake,  and  the  passenger  declines  to  correct  it, 

a  street  car  is  not  a  refusal  to  pay  fare,  within  Civ.  Code  Cal.  §  2188, 
authorizing  tlie  ejec-tiou  of  passengers  who  refuse  to  pay  fare.  Id. 
But  the  tender,  to  a  conductor  on  a  train,  of  a  !f20  gold  piece  in  pay- 
ment of  a  $1.35  fare,  is  not  a  reasoualjle  tender.  Fultou  v.  Railway 
Co.,  17  U.  C.  Q.  B.  428. 

'  Barker  v.  Railroad  Co.,  151  X.  Y.  237.  io  X.  E.  550.  The  court 
said:  "When  the  defendant  enacted  the  rule  requiring  its  conductors 
to  furnish  change  to  a  passenger  to  the  amount  of  two  dollars,  it  did 
all  that  could  reasonably  be  expected  of  it  in  consulting  the  conven- 
ience of  the  general  public,  and  it  would  be  unreasonable  and  burden- 
some to  extend  the  amount  to  five  dollars.  It  would  require  conduct- 
ors to  carry  a  large  amount  of  bills  and  small  change  on  their  persons, 
and  greatly  impede  the  rapid  (■olIe(  tion  of  fares." 

s  Corbett  v.  Railway  Co.,  42  Hun,  587;    s.  c.  114  X.  Y.  570,  21  X. 
E.  1033. 
(688) 


Ch.   21)  FARES.  §    21.7 

the  conductor  may  expel  liiui  fii'in  ilic  train  at  a  [M.int 
to  which  the  money  received  actually  pays  the*  fare." 

§  287.     TIME  OF  PAYMENT. 

A  common  carrier  of  passengers  may  demanil  pay 
ment  of  fare  either  at  the  bejiiuniii.ii  of  ilir  jnuin.  \  ..r 
at  any  subsequent  time.^  On  street  ijiilr(.a<ls,  i  lie  u«mi- 
eral  custom  is  for  the  passenj^er  to  pay  liis  far*-  in  ilif 
car  on  demand,  without  purchasinii  a  tirk*-!;  l>ni  <»n 
ordinary  railroads  the  general  cnsioni  is  fm-  ilic  pas- 
senger to  pay  fare  by  the  purchase  of  a  ti*  kct  lirfoi-c 
the  journey  begins,  thouoii  payment  of  fare  to  tin-  ton- 
diictor  of  the  train,  on  demand,  is  also  practiccMl.  I'.ni 
it  has  been  held  that  a  railroad  company  has  tin-  ri.ulit 
to  make  and  enforce  a  nile  reiiniring  i)ass('nii<'i-s  at  a 
crowded  depot,  where  trains  are  constantly  arrivinj^ 
and  departing  for  different  points  an<l  directions,  to 
purchase  tickets,  and  to  exhibit  them  to  the  gateman 
or  other  employe  before  boarding  the  train. - 

9  ^McCarthy  v.  Railroad  Co.,  41  Towa,  4\V1. 

§  2G7.  1  This  is  the  piovision  of  Civ.  Code  Cal.  §  lilST;  Conip.  I.:i\vs 
Dalv.  1887.  §  3896;  Civ.  Code  Mont.  ISit."..  S  i-'SOT.  Coinp.  Laws  N.  M. 
1884.  S  2082.  authorizes  railroad  coinpanifs  to  dciiiaiid  tlir  iiaymeiit 
of  fare  in  advance,  and  gives  a  lien  on 'the  passenger's  luygagi'  to  se- 
cure the  payment. 

2  Pittsburgh,  C.  &  St.  L.  H.  Co.  v.  Vandyne.  ."  Ind.  .''m<;;  Ualtinu.re 
&  O.  R.  Co.  V.  Can-,  71  Md.  i:r..  17  .Ml.  10.-.2;  .Northern  Cent.  Uy.  r.». 
V.  O'Conner,  76  Md.  207.  2^  Atl.  4^'.t:  IHcUerinan  v.  Ivi«'t  c...  H 
Minn.  433,  46  N.  W.  !t07.  In  this  last  ease  it  was  furtla-r  li.-l<l  that 
the  servants  of  the  railroad  ((.nipany  have  the  right  to  seize  and  .!.•- 
tain  a  passenger  so  far  as  nec'ssary  to  prevent  him  from  iHKirdini:  a 
train  in  motion.  Wliere  a  railroad  eomi^ny  a.lveitlses  tn  .arry  pas- 
sengers fnmi  several  points  to  anoth.-r.  and  nimn.  "f-.r  oin- l.alf  far.- 
for  the  round   trip.-'   passengers  desiring  m  av.dl   iluMns.-lv..s  thereof 

•         V.l   KKT.C.Mi.I'AS.— 14  "••^••) 


§  268  CARRIERS  OF  PASSENGERS.  (Ch.  21 


§  268.     HIGHER  TRAIN    FARE. 

In  the  absence  of  statutor}^  prohibition,  a  railroad 
company  may  charge  a  higher  price  for  carrying  pas- 
sengers when  the  fare  is  paid  on  the  train  tlian  it  does 
at  its  ticket  office,  provided  reasonable  facilities  are 
afforded  passengers  for  purchasing  tickets,  and  pro- 
vided the  train  fare  is  not  unreasonable,  and  does  not 
exceed  the  maximum  allovv^ed  by  law.^  *'Such  a  regu- 
lation has  been  very  generally  considered  beneficial 
both  to  the  public  and  the  corporation,  if  carried  out 
in  good  faith.      It  imposes  no  hardship  or  injustice  on 

are  chargeable  with  notice  that,  when  a  round  trip  at  one  fare  is  ad- 
vertised, it  necessarily  implies  the  purchase  of  a  special  ticket.  But 
when  the  company  has  none  on  sale  at  a  station,  and  a  passenger 
gets  on  and  is  carried  one  way  for  half  fai'e  by  the  conductor,  who  un- 
derstands the  circumstances,  he  should  call  at  the  company's  office  at 
destination  for  a  return-trip  ticket;  and  if  he  fails  to  do  so,  and  ten- 
ders the  conductor  on  the  return  trip  only  half  a  fare,  without  any  ex- 
planation, the  conductor  is  justituHl  In  ejecting  him.  St.  Louis  &  C. 
K.  Co.  V.  Carroll,  l.'i  111.  App.  .-.8".. 

§  2(».  1  Chicago.  B.  iV:  Q.  K.  Co.  v.  Parks,  18  111.  4(10;  Toledo,  W.  A: 
W.  Ry.  Co.  V.  Wright,  OS  Ind.  58G,  595;  Evansville  iVc  I.  R.  Co.  v. 
Gilmore,  1  Ind.  App.  408,  27  N.  E.  992;  Lake  Erie  iV-  W.  R.  Co.  v. 
Mays,  4  Ind.  App.  4i;j,  30  N.  E.  HOG;  State  v.  Chovln,  7  Iowa,  204; 
Wllsey  V.  Railroad  Co..  83  Ky.  .".ll:  Swan  v.  Railroad.  132  Mass.  IIG; 
Du  I.auraus  v.  Railroad  Co.,  15  Minn.  49  ((ill.  2!t);  Bordeaux  v.  Rail- 
Avay  Co.,  8  Hnn,  .■'•79;  Railroad  Co.  v.  Sklllman.  3;)  Ohio  St.  444.  Tlie 
riglit  to  charge  an  extia  fare  on  trains  is  given  by  statute  in  some  of 
the  states.  Civ.  Code  Cal.  §  2189;  Gen.  St.  Kan.  1SS9.  par.  13,25. 
See,  also,  next  section.  By  the  law  of  South  Carolina,  where  a  pas- 
senger is  oflered  an  opportimit.v.  by  the  railroad  on  wliich  he  pro- 
poses to  travel,  to  ])ur(  base  a  ticket,  and  then  neglects  or  refuses  to 
do  s,(>,  the  railroad  i'i\r^^  of  such  passenger  is  the  ordinary  tiiket  fan- 
and  25  cents  additional.  Moore  v.  Rabroad  Co..  .38  S.  C.  1,  IG  S.  E. 
781 . 


^'ll-    -0  FARES.  §    2(;S 

passengers,  who  may,  if  tliev  desire  to  do  so,  pay  tln-ii- 
fare   and  procure  tickets  at  the  h)w-er  rate  bcfuiv  cu 
teriiio-  the  cars;    and  it  tends  to  protect  tlie  c<»rpoi'a- 
tion  from  the  frauds,  mistakes,  and  inconveniences  in 
cident  to  collecting-  fares  and  makin<»  change  on  trains 
while  in  motion,  and  from  imposition  by  those  who  may 
attempt  to  ride  from  one  station  to  aiioTlici-  wiiliuui 
payment,  and  to  enable  conductors  to  aticiMl   to  the 
various  details  of  their  duties  on  the  train  an<l  ;ii  si;i 
tions."  == 

If  a  passenger  on  a  train,  wiiliont  a  lickci.  jtays  oiil\ 
from  station  to  station,  he  may  Itc  coniiiclltMl  to  pay  t  In- 
higher  train  fare  on  each  payment,  since  a  new  mn- 
tract  between  the  company  and  the  passeng«'i-  is  niaih- 
at  each  station.^  f 

Such  a  regulation  is  not  waived  by  the  Ian  that  pas 
sengers  have  been  allowed  lo  tide  foi-  the  ticket  laie 
paid  on  the  train.*  Nor  does  the  acceptance  by  tlie 
conductor  of  less  than  the  regular  train  fare  amonnt  to 
a  contract  to  carry  to  destination,  whei-e  the  con<lncini- 
immediately  demamls  the  full  fai-e;    and  the  itasseimi'i- 

2  Forsee  v.  Kailioad  ("o.,  G^i  Miss.  GtJ.  Si-e,  also,  to  siimi'  i-ffi-ct,  Staif 
v.  Goold.  53  Me.  27t);  Hilliard  v.  (Joold.  :{4  N.  11.  S.VK  Rut  tli.« 
court  cannot  assume  that  a  railroad  conipany  luukcs  a  distinctinn  !>«•- 
tweeu  ticket  fare  and  train  fare,  but  this  fact  must  be  pleaded  and 
jiroved.     Avey  v.  Kailrnad  Co.,  11   Kan.   IIS. 

a  Chicasjo,  B.  A:  (}.  K.  ("o.  v.  Parks,  18  111.  Hid. 

4  Sage  V.  Uailruad  Co.,  i:!4  1ml.  KK),  :«  N.  i:.  771.  Uni.  in  an  a<- 
tion  for  ejecting  a  passenger  wIki  refused  tti  pay  tiic  hl^zlnr  train 
fare,  evidence  of  the  custom  of  the  road  not  tn  make  ;iny  dlsc-rludna- 
tion  between  ticket  and  train  fare  is  adiiHssilile  t<i  slmw  that  il.iiiiiJtr 
was  acting  in  good  faitli.  especially  wheie  tlie  ((imiany  iIim-.s  not  prove 
aiiv  rule  lixing  a  higher  late  on  liains.  LtiulsvlUe,  .\.  \  *'<  S.  K.  Co. 
V.  Cninaii,  11  Iah  ('i'fiin.)  its. 


§    -1)9  CARRIERS   OF  PASSENGERS.  (Ch.    21 

may  be  expelled  at  a  point  beyond  which  the  fare  paid 
does  not  entitle  him  to  ride." 

A  regulation  of  a  railroad  companj^  requiring  the  dif- 
ference between  the  ticket  fare  and  the  train  fare  to 
be  refunded  to  the  passenger  on  presentation,  at  a 
ticket  office,  of  a  check  issued  to  him  by  the  conductor 
on  collecting  the  excess  on  the  train,  is  also  valid. 
Since  the  company  may  refuse  to  carry  at  all  without 
a  ticket,  it  may  fairly  refuse  under  the  far  less  incon- 
venient alternative  to  the  traveler  of  putting  him  to 
the  trouble  of  going  to  a  ticket,  office  to  get  his  ex- 
cess ref uuded.  "If  the  company-  may  charge  those  fail- 
ing to  get  a  ticket  an  additional  price  and  keep  it,  cer- 
tainly they  may  charge  such  price  and  refund  it."  ® 

t 

§  269.     SAME— REASONABLE  OPPORTUNITY  TO 

PURCHASE  TICKET. 

It  has  been  held  in  a  few  cases  that,  to  enable  a 
railroad  company  to  charge  a  higher  fare  on  trains 
than  at  tJie  station,  it  need  not  keep  its  ticket  office 
open  a  reasonable  time  before  the  departure  of  the 
train,  provided  the  train  fare  is  a  reasonable  one.  The 
regulation  permitting  the  lower  charge  at  the  station 
than  on  the  train  is  a  mere  proposal,  which  is  witli- 
diawn  bv  the  closing  of  the  ticket  office  and  the  with- 
drawal  of  the  agent.^  But,  by  the  overwhelming  weight 

5  Lake  Erie  &  W.  R.  Co.  v.  Mays.  4  Ind.  App.  413.  30  X.  E.  1106. 

6  Ree.se  v.  Railroad  Co.,  131  Pa.  St.  422.  434,  19  Atl.  72.  Tlie  exce.ss 
is  reijuired  to  lie  refunded  in  tliis  manner  by  statute  in  some  states. 
C*omp.  St.  Xeb.  181)3.  p.  642,  c.  72,  art.  9,  §  3;  Revision  X.  J.  p.  944,  § 
164;   Pub.  St.  R.  I.  p.  409,  c.  158,  §  31. 

§  269.    1  Crocker  v.  Railroad  Co.,  24  Conn.  249;    Bordeaux  v.  Rail- 
way Co..  8  Hun,  579. 
(692) 


Cll.   21)  FARKS.  §   209 

of  aiithoritT,  the  fnrnishinji-  of  pntpcr  faciliiirs  in  en- 
able a  passenger  to  purchase  a  ticket  is  a  prereciuisito 
to  the  riglit  to  demand  a  train  fare  at  a  higher  rate  than 
the  ticket  fare;  and,  if  such  facilities  are  not  furnislicd. 
a  passenger  who,  without  fault  on  his  paii,  h(»ar(ls  th.- 
train  without  such  a  ticket,  will,  on  tender  of  the  ticket 
fare,  be  entitled  to  all  the  rights  and  privileg«*s  that  a 
ticket  would  afford  him.-  If  a  passenger  has  n<>t  Ih-.-u 
afforded  a  reasonable  opportunity  to  purchase  a  ticket 
at  the  station  where  the  journey  began,  he  is  not  bonud 
to  leave  the  train  at  a  station  en  route,  and  iiurdias  ■  a 
ticket  back  to  the  station  whence  he  started,  and  an- 
other to  his  destination.  If  he  is  riglitfnlly  on  the  train 
without  a  ticket,  it  is  his  right  to  compleie  his  jdiiiiicy 
by  paying  the  ticket  rate  for  his  fare.'^      ^'o,  a  <  arrier 

2  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v.  Beckett,  11  In.l.  Ap]..  :.17.  ;i!t 
N.  E.  429;  Jefifersonville  R.  Co.  v.  Rogers,  28  Ind.  1;  St.  Louis,  A.  \ 
C.  R.  Qo.  V.  Dalby,  li)  111.  352;  Forsee  v.  Railroad  Co.,  (y{  Mi<s.  i.e.; 
Georgia  South.  &  F.  R.  Co.  v.  Asmore,  !^S  Ca.  .^Ji),  15  S.  E.  i;i. 

3  Central  Railroad  &  Banking  Co.  v.  Strickland.  'JO  Ga.  .")tl2,  IC  S.  K. 
352.  A  passenger  boarded  a  train  ar  a  tlag  station,  and  there  was  a 
dispute  between  him  and  the  conductor  as  to  the  proper  rate  to  he 
charged.  The  conductor  tiually  informed  him  that  he  could  ride  ai 
four  cents  a  mile  to  tlie  next  station,  where  tickets  wore  sold,  and 
could  got  off  the  train  there,  buy  a  ticket,  and  restime  his  Journey 
tlie  rest  of  the  way  for  tliree  cents  a  mile.  The  passenger  agreinl  to 
this,  and  paid  tlie  foiu-  cents  a  mile  to  tlie  ne.\t  station,  got  off  tlie 
train  for  the  purpose  of  procuring  a  ii«  ket.  Init  could  not  do  so.  be- 
cause the  ticket  office  was  dosed.  He  then  lioanled  the  traiu  again, 
to  continue  his  journey,  and  tendered  the  coiidintor  three  <  euts  a  mile. 
Held,  that  the  conductor  had  no  h'g.d  rlglii  in  put  him  oiT  ilie  train 
because  he  refused  to  pay  four  cents  a  mile,  t  bough  the  »ondu<ior  had 
instructions  to  charge  four  cents  a  mile  train  fare.  'I'he  passenger  Is 
not  presumed  to  know  the  i)rivate  or  secret  rules  given  by  the  <-om- 
pany  to  its  conductors,  but  lias  a  right  to  rely  uikju  llielr  si.neMieiits 


§  269  CARRIERS  OF  PASSENGERS.  (Ch.  21 

which  advertises  that  it  will  carry  paissengers  on  a  spe- 
cial train  at  excursion  rates  from  a  certain  station  at 
which  it  has  no  ticket  office  or  agent  cannot  insist  that 
all  who  board  the  train  shall  first  purchase  an  excur- 
sion ticket;  and  it  has  no  right  to  eject  a  passenger  who 
tenders,  on  the  train,  the  excursion  rate/  So,  it  has 
been  held  that  the  fact  that  the  company  agrees  to  re- 
fund the  excess  train  fare  on  presentation  of  the  con- 
ductor's receipt  or  check  at  any  regular  station  does  not 
authorize  the  higher  train  charge,  if  no  reasonable  op- 
portunity is  given  the  passenger  to  purchase  a  ticket  in 
the  first  instance.^      "It  cannot  be  justly  said  that  it  is 

as  to  what  the  rules  are  in  contracting  with  them.  Georgia  Railroad 
&  Banking  Co.  v.  Mnrden,  8(3  Ga.  434,  12  S.  E.  630. 

4  Chicago,  St.  L.  Ai  P.  R.  Co.  v.  Graham,  3  Ind.  App.  28.  29  X.  E.  170. 

6  Phettiplace  v.  Railroad  Co.,  84  Wis.  412.  54  N.  W.  1002;  Toole  v. 
Railroad  Co.,  16  Or.  261,  19  Pac.  107.  Bnt  in  Harrison  v.  Fink,  42 
Fed.  787,  it  was  held  that  a  passenger  who  is  unable  to  procure  a 
ticket  at  a  station  because  the  agent  has  gone  out  to  meet  the  train 
at  the  water  tank,  200  feet  away,  and  who  refuses  to  pay  the  extra 
train  fare,  and  take  a  rebate  check  for  the  excess,  as  required  by  the 
company's  rules,  sanctioned  by  the  state  railroad  commission,  may  be 
ejected  from  the  train.  In  Snellbakor  v.  Railroad  Co.,  94  Ky.  507, 
23  S.  W.  500,  it  was  held  that  a  regulation  of  a  railroad  company  re- 
quiring a  passenger  entering  a  train  without  a  ticket  to  pay  25  cents 
extra  fare,  this  sum  to  be  refunded  upon  the  presentation  to  any 
ticket  agent  on  the  road  of  a  rebate  check  furnished  by  the  conductor, 
is  not  unreasonable;  and  a  passenger  Avho.  with  knowledge  of  the  rule, 
and  of  the  fact  that  there  is  no  ticket  ofhce  at  the  station  for  which 
he  was  destined,  failed,  before  starting  on  his  journey,  to  buy  a  round- 
trip  ticket,  which  he  knew  he  could  procure,  cannot  complain  that  on 
his  return  trip  he  was  ejected  from  the  train  on  liis  refusal  to  pay  the 
25  cents  extra  fare.  The  opportunity  to  purchase  a  round-trip  ticket, 
and  the  knowledge  that  no  ticket  could  be  procured  at  destination, 
render  inapplicable  the  rule  prohibiting  the  charging  of  a  higher 
train  fare  where  no  opportunity  to  purchase  a  ticket  is  offered. 


Ch.  21)  FAR  IS.  §  2G'J 

reasonable  to  require  the  jiasscnuer  to  pay  nimc  than 
reiiular  rates  on  tlu*  train,  even  tlioiiuli  a  piuccss  is  cic 
ated  bv  which  he  niav  at  sonic  tin  me  tinir  uct  bark  the 
excess,  unless  the  passenjier  has  lirst  had  an  oitpoiiu 
nitv  to  purchase  a  ticket  at  the  station  from  w  lii.  h  la- 
starts."  °      So,  a  passenjier  hohlini;  a  litUd  uood  fop  a 
flas"  station,  Avho  chaniii's  his  mind  wliiio  on  iln-  jonr- 
ney,  and  decides  to  ^o  to  tlie  station  bcyoml.  ranimt  bo 
charged  more  than  the  ticket  rate  of  laic  bci  w  orn  i  in-se 
two  stations,  if  th«  company  has  no  tickets  on  salo  at 
the  flac,-  station.      "There  is  no  rule  of  bnv  (•!•  dcnnuKl  of 
jmblic  policy  wliich  requires  a  passenjier  to  decide  irrc 
vocably,  when  he  purchases  his  ticket,  where  he  would 
leave  the  train.'-  ^ 

But  the  reasonable  opportunity  to  purchase  a  ticki't 
is  furnished  by  keeping  a  convenient  ofVicc  open,  un.l.r 
the  charge  of  a  competent  agent,  up  to  the  advertised 
time  fixed  for  the  departure  of  the  train;  and  it  in-ed 
not  be  kept  open  until  the  actual  de])arture  of  the  train, 
where  there  has  been  a  delay  in  its  arrival."  And  a 
mere  statement  by  a  stranger  to  a  person  about  to  laUe 

6  Phcttiplacc  V.  Kailioad  Co.,  84  Wis.  4V2,  .".4  N.  W.   lt>;c. 

7  Id. 

8  St.  Louis.  A.  &  T.  H.  H.  Co.  v.  Soulli.  4:*.  111.  ITC;  Clilcap>.  R.  1 
&  r.  R.  Co.  V.  Brisbane.  24  111.  -Vpp.  4(;:{:  Swan  v.  Ualln.a.l  Co..  l.!-' 
Mass.  110.  A  railroad  com]  any  is  not  liound  to  keep  a  liikot  aK«-ni 
at  the  office,  at  an  ordinary  way  station,  to  sell  tii-Ucts  din-iim  the 
stoppajie  of  the  train,  li  is  sntficient  tli:ii  ilic  n^'cni  was  liu-n-  np  to 
the  time  of  the  ai  rival  of  llic  train,  ol'.yrne  v.  itailroad  Co..  -'tJ  I'n. 
l.;i\\-  .T.  117.  It  is  not  the  comiiany's  dtity  lo  Urcp  tin-  otll«r  open 
\:ilil  the  time  for  the  departnrc  of  the  train  arrives,  jind  It  heyins  to 
ii:ove.  sinee.  as  a  matter  of  imlilic  policy.  n<i  oiu-  e.\<-eiit  those  operal- 
in«  it  onjrlit  to  lie  iiermiitfd  to  -n  on  ilic  train  wii.-n  lu  motion.  Sliite 
V.  llungerford,  30  .Minn,  ti,  .is  .\.  W    f.liS. 


§  269  CARRIERS  OF  PASSENGERS.  (Ch.  21 

a  train  that  he  is  too  late  to  get  a  ticket  does  not  relieve 
him  from  paying  the  higher  train  fare,  where  the  ticket 
office  Avas  in  fact  open  until  after  the  departure  of  the 
train.® 

In  some  of  the  states  statutes  or  regulations  of  rail- 
road commissioners  expressly  forbid  the  exaction  of  a 
higher  train  fare  than  the  ticket  fare,  if  a  reasonable 
opportunity  has  not  been  given  the  passenger  to  pur- 
chase the  ticket.'**  It  has  been  held  that  a  regulation 
of  the  state  railroad  commission  requiring  ticket  offices 
to  be  open  a  reasonable  time  before  the  departure  of 
trains  is  not  a  regulation  of  interstate  commerce,  as  ap- 
plied to  a  passenger  taking  passage  on  a  train  within 
the  state  to  a  point  in  another  state;  and  he  cannot  be 
charged  the  higher  train  fare  if  the  railroad  company 
had  failed  to  obey  the  regulation.'^  Under  a  statute 
which  permits  the  charge  of  the  higher  train  fare  for 
passengers  having  no  tickets,  where  the  ticket  office  is 
open  when  the  train  starts,  a  railroad  company  cannot 
charge  a  higher  train  fare  if  its  office  is  closed,  though 
a  statute  fixing  the  time  when  its  ticket  office  shall  be 

»  Union  Pae.  Ry.  Co.  v.  Wolf,  54  Kan.  592.  38  Pac.  786.  It  is  tlie 
duty  of  a  passenger  to  apply  for  his  ticket  before  the  expiration  of  the 
time  at  which  the  train  is  to  start,  as  sliown  by  the  time-table.  If  he 
applies  after  tliat  time,  tliongh  before  the  train  has  actually  started, 
and  he  is  unable  to  procure  a  ticket  either  because  the  office  has  closed 
or  tlie  agent  is  engaged  in  other  business,  then  the  person  so  apply- 
ing is  subject  to  all  the  reasonable  rules  of  the  company,  requiring 
him  to  pay  a  higher  rate  of  fare  than  he  would  have  had  to  pay  if  he 
had  procured  a  ticket.     Illinois  Cent.  R.  Co.  v.  Bauer,  GG  111.  App.  124. 

10  Ann.  Code  Miss.  1892.  §  3558,  prohibits  railroads  from  collecting 
more  than  the  ticket  fare  from  a  passenger  who  boards  the  train  at 
a  depot  or  other  place  where  tickets  are  not  ou  sale. 

11  Hall  V.  Railroad  Co.,  25  S.  C.  5G4. 
((i!)G) 


Ch.   21)  FARES.  §   2ii9 

open  does  not  require  it  to  be  open  at  the  time  when 
this  train  started.^-  So,  under  a  statute  which  rtMiuires 
the  ticket  office  to  be  kept  open  a  specilieil  lime  ininie- 
diatelv  before  the  startiuu  (tf  trains,  it  is  not  sutlicieiit 
that  the  ticket  office  be  open,  but  the  a^ent  must  be  in 
the  ticket  office  duriuii  this  time,  r^ady  In  wait  mm  pei-- 
sons  desiring  to  purchase  tickets."*  If  the  tick»i  otlire 
was  not  in  fact  open  tlu*  reipiisite  time  before  the  time 
of  departure,  it  is  immaterial  whether  or  not  the  pas 
senger  applied  for  a-  ticket  during  this  perioil.^*  Hut, 
where  the  stattite  requires  the  company  to  give  the  pas- 
senger an  opportunity  to  purchase  a  ticket  "within  a 
reasonable  time  before  the  departure  of  the  train,"  it  is 
not  necessary  for  the  company  to  keep  the  ticket  office 
at  a  small  station  open  until  the  very  moment  of  thf 
departiTre  of  the  train.  All  that  a  passenger  can  de- 
mand is  that  he  have  a  reasonable  opportunity  to  pin- 
chase  a  ticket;  and,  in  determining  whether  or  not 
such  opportunity  was  given,  it  is  proper  for  the  jniy  to 
consider  the  character  of  the  station,  and  whelliei-  the 

12  Chase  v.  Railroad  Co..  20  N.  Y.  523;  Nelli-s  v.  Railroad  Co..  30 
X.  Y.  505,  construing  Laws  N.  Y.  IsriT,  c.  22S. 

13  Atchison,  T.  &  S.  F.  R.  Co.  v.  Hogue,  50  Kan.  40.  31  Tao.  (KKS; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Dwelle,  44  Kan.  31)4.  24  Pac  .'.(K),  cou- 
struinjj  Gen.  St.  Kan.  ISSiJ.  iiar.  1325;  Turtcr  v.  Kaihoad  Co.,  34 
Barl).  <N.  Y.)  353;  Fordyce  v.  Manuel.  82  Tex.  527,  IS  S.  W.  (557,  con- 
struinjj  Sayles'  Civ.  St.  Tex.  art.  42.".Sij,  sul)d.  0.  A  railroad  company 
which  fails  to  keep  its  ticket  otlice  oik-u.  as  n-tinircd  liy  statute,  c-an- 
not  exact  a  higher  train  fare  from  a  passoniiri'r  who  was  \mal»le  t<i 
buy  a  ticket.     Atchison.  T.  iV  S.  V.  \i.  Co.  v.  lHcU.>rsnn  (K.iu.  .\pp  » 

45  I'ac.  075. 

14  Missouri  Pac.  Ry.  Co.  v.  McClaii.ili:iii,  tjO  Tex.  5:;n,  1  S    W.  57il. 


§    270.  CARRIERS   OF   PASSENGERS.  (Ch.    21 

facilities  for  purchasing  tickets  are  such  as  are  re- 
quired for  the  convenience  of  the  public  at  that  place/ ^ 

§  270.     SAME— EXCESSIVE  OR  UNREASONABLE 

TRAIN  EARE. 

A  railroad  company  cannot  establish  a  train  fare  in 
excess  of  the  limit  of  fare  fixed  by  statute,  though  the 
ticket  fare  is  within  the  limit.^      But  the  authorities 

15  Everett  v.  Railroad  Co.,  (19  Iowa,  15,  28  N.  W.  410,  construins? 
Laws  Iowa  1874,  o.  68,  §  2.  Tinder  the  laws  and  rules  prescribed  by 
the  railroad  commission  of  (it'or.yia,  it  is  the  duty  of  railroad  com- 
jianies  to  keep  their  ticket  ottices  open  a  reasonable  time  before  the 
departure  of  trains  from  all  stations,  provided  that  offices  at  way 
stations  may  be  closed  at  one  minute  before  the  arrival  of  trains;  and 
it  is  the  duty  of  passengers  to  use  proper  diligence  in  supplying  them- 
selves with  tickets  before  getting  upon  trains.  A  railroad  company  is 
not  bound  to  keep  a  ticket  otfice  open  eacli  and  every  minute  up  to 
the  time  it  may  lawfully  close  the  same,  provided  a  reasonable  oppor- 
tunity is  afforded  all  persons  desiring  tickets  to  obtain  them;  nor  is 
a  passenger  bound  to  wait  at  a  ticket  office  an  unreasonable  time  for 
the  appearance  of  an  agent  to  sell  him  a  ticket,  or  to  call  again  and 
again  at  the  otfice  to  procure  one,  provided  in  good  faith  and  with  due 
diligence  he  endeavors  to  do  so  before  the  time  for  closing  the  otfice 
arrives.  In  each  case  it  is  a  question  to  be  detei  mined  by  the  jury 
Mhcther  or  not  the  iiarties,  respectively,  performed  the  corresponding 
duties  devolving  uiuin  them,  and  it  is  not  tho  province  of  the  court  to 
decide  what  particular  facts  will  constitute  negligence  or  diligence  by 
either  party,  and  thus  restrict  the  jury  in  the  exercise  of  their  duty 
in  this  respect.  Applying  the  rule  that  good  faith,  common  honesty, 
and  courteous  treatment  should  be  observed  on  both  sides,  any  fair 
mind  ought  to  be  able  to  decide  readily  who  is  in  fault  when  a  pas- 
senger fails  to  procure  a  ticket.  Central  Railroad  &  Banking  Co.  v. 
Strickland.  90  Ga.  502,  16  S.  E.  :i52. 

§  270.     1  Louisville,  N.  cv  G.  S.  R.  Co.  v.  Guinan,  11  Lea  (Tenn.)  98 r 
Zagelmej-er  v.  Railroad  Co.,  102  Mich.  214,  60  N.  W.  436.     The  pen- 
alty imposed  by  Laws  N.  Y.  1857,'  c.  185.  upon  railroad  corporations 
for  exacting  a  greater  rate  of  fare  than  fixed  by  statute  is  incurred 
(G9S) 


Oh.  21)  FARES.  §  270 

are  in  conflict  on  the  question  ^^•ll<•tll('l•  a  train  far.'  in 
excess  of  the  statutory  limit  is  rendiMcW  vaTnl  1>\  a  reu- 
ulation  requiring  the  condiu-tor  1o  issue  the  passtMi.uer 
a  rebate  checlv  for  the  excess,  wliicli  may  be  casbcil  ai 
any  ticket  office  of  the  company.  In  .Maryland  it  has 
been  held  tliat  a  railroad  tomi»any  has  no  right  t<>  (*x- 
act  of  a  passenger  a  higher  train  fare  than  the  maxi- 
mum fixed  by  law,  though  it  issues  U)  iiim  a  rebate 
ticket  which  entitles  him  to  a  suuj  at  the  company's  of- 
fice which  would  biing  his  fare  within  the  legal  limit. 
But  in  Pennsylvania  it  has  been  held  that  the  fact  that 
an  extra  charge  of  ten  cents  to  a  passenger  not  procur- 
ing a  ticket  makes  his  total  fare  exceed  the  authorized 
statutory  charge  for  transportation  does  not  render 
such  regulation  void,  where  the  company  i)royides  for 
the  refunding  of  the  ten  cents  on  the  presentation  ai  its 
ticket  office  of  a  check  to  be  issued  to  iiim  l»y  i  In-  ( oii 
ductor.^      On  principle,  it  would  seem  that  the  .Maiy 

where  the  conductor  illegally  requu-es  five  cents  iu  addiiitui  to  tlif 
lejjal  fare  because  the  passenger  had  uo  ticket.  Chase  v.  Kailmad  Co.. 
20  X.  Y.  .'>2;'..  Where  the  train  faro  fixed  by  a  railroad  (.oniiiany  i< 
unreasonable,  and  beyond  the  limits  of  its  authority,  and  the  con- 
ductor of  the  train  refuses  to  accept  from  a  pas-senger  less  than  the 
illegal  and  unauthorized  rate,  it  is  not  neci-ssary,  to  entitle  the  passen- 
ger to  remain  on  the  train,  to  tender  more  than  the  ticket  rate,  tluuiKii 
the  company  might  have  fixed  sucli  ticket  rate  at  a  higlier  sum,  or 
exacted  more  than  the  ticket  fare  from  passengers  on  trains.  Smiiii 
V.  Railroad  Co.,  2:i  Ohio  St.  10.  A  rule  of  a  railroad  company  which 
requires  a  passenger  to  citlici'  |iay  an  .iinnmii  in  excess  of  the  Idgliesi 
amount  that  can  be  legally  charged  for  his  passjige,  or  be  e.xpeile.l 
from  the  train,  is  not  a  valid  rule.  Alddson.  T.  iV:  S.  V.  U.  Co.  v. 
Dickerson  (Kan.  App.i  4.")  Pac.  ;>7.^.. 

2  Baltimore  iVr  Y.  'I'm-niikc  Road  v.  Hnnnc.   \r>  Md.  ;;H. 

«  Reese  v.  Railroad  Co.,   l.'ll   I'a.   St.    IJJ,    1'.'  .Ml.  VJ. 


§  270  CARRIERS  OF  PASSENGERS.  (Cll.  21 

laud  decision  ifj  right,  for  the  passenger  ought  not  to  be 
put  to  the  trouble  of  having  refunded  an  excessive 
charge  which  the  company  had  no  right  to  make  in  the 
first  place. 

Even  in  the  absence  of  statute,  a  railroad  company 
has  no  right  to  fix  the  train  fare  at  an  unreasonably 
high  sum,  or  to  unjustly  discriminate  in  its  enforce- 
ment. But  a  regulation  fixing  the  train  fare  25  cents 
higher  than  the  ticket  fare  is  not  unreasonable.*  So, 
an  instruction  by  a  railroad  company  to  conductors  not 
to  enforce  payment  of  an  extra  train  fare  from  passen- 
gers who  have  failed  to  procure  tickets,  in  case  such 
passengers  get  on  at  a  station  where  there  are  no  tick- 
ets on  sale,  or  in  case  the  crowd  on  the  train  is  so  large 
as  to  make  it  impossible  for  him  to  issue  refunding 
checks  to  such  passengers,  and  also  to  collect  fares  and 
tickets,  does  not  render  the  regulation  requiring  the 
payment  of  the  extra  train  fare  void,  as  not  being  gen- 
eral, fair,  and  impartial.^ 

4  McGowen  v.  Steamship  Co.,  41  La.  Ann.  732,  6  South.  606. 

5  Reese  v.  Raihoad  Co.,  131  Pa.  St.  422.  19  Atl.  72;  McGowen  v. 
Steamship  Co.,  41  La.  Ann.  732,  6  South.  606.  But  if  the  conductor  de- 
mands a  higher  rate  of  fare  tliau  he  is  entitled,  under  the  niles  of 
the  company,  to  demand,  the  demand  is  illegal,  and  the  company  is 
responsible  if  the  conductor  ejects  the  passenger  for  his  refusal  to 
comply.     Wilsey  v.  Railroad  Co.,  S3  Ky.  511. 

(700) 


Ch.   21)  FAKES.  §   271 

§  271.     ON  FREIGHT  TRAINS. 

A  railroad  company  has  the  ri^ht  to  i)res<ril)o  rea- 
sonable conditions  for  the  admittance  <>t'  i»;isstMij:rrs  on 
its  freight  trains;  and  payment  of  fare  to  iis  oHirc 
agents,  or  procuring  a  ticket,  prior  to  taking  passage  on 
sncli  trains,  is  a  reasonable  condition.'  So,  a  rule  pro- 
hibiting passengers  from  traveling  on  through  fnighi 
trains  without  the  written  orders  of  the  division  super- 
intendent is  reasonable  and  just;  and  a  passenger  r;iii 
not  travel  on  such  a  train,  though  his  ticket  reads, 
"Good  on  anv  train."  These  words  have  reference  onl  \ 
to  trains  used  in  the  carriage  of  passengers." 

As  a  general  proposition,  a  railr<i;Hl  <(»nipan,v  mav 
enforce  a  rule  requiring  tickets  on  freight  trains,  after 
giving  suitable  notice  of  its  existence  to  the  public  lor 
such  length  of  time  before  it  is  put  in  operaiion  as  lo 
make  it  reasonabh'  certain  that  all  passengers,  in  ilie 
exercise  of  due  diligence,  must  become  awai-e  of  it.  In 
such  a  case,  knowledge  of  the  rule  by  tlie  ]>assenger 
against  whom  it  is  enforced  need  not  be  pioved.  \\\\\ 
a  passenger  who  takes  passage  on  a  freight  train  with 
in  a  few  days  after  the  adoption  of  the  rule  should  be 
given  personal  notice,  where  the  regulaiion   has  not 

§  271.  1  Cleveland,  C.  He  C.  R.  Co.  v.  Hiuiraiii.  11  ulii.i  St.  l.'iT; 
Tole;lo,  P.  &  W.  R.  Co.  v.  Patterson,  (^5  111.  :{n4:  Falkiirr  v.  Hallway 
Co.,  5.5  Ind.  oGO;  Jjx^v  v.  Uailmad  Co.,  'S2  Iowa,  .^..M:  Indlaiiapoils  & 
St.  L.  R.  Co.  v.  Kennedy,  77  Ind.  ;j07. 

2  Thomas  v.  Railway  Co.,  72  Mich.  :^5'^,  40  N.  W.  M]3. 

3  Biuiinpton  <fc  M.  R.  R.  Co.  v.  Rose,  11  Neb.  177.  S  .\.  N\  .   i;;.;.     It 

is  the  duty  of  the  passenRer  to  know  of  sneli  a  i-cmilatlon  ln'foi-r  >:i«t- 

tlnjr  on  boaid  tho  train.    Southern  Kan.  Ky.  Cn.  v.   II  :i  i\:\\  ,  ;t-»  Kaiu 

5(17.  i<;  I'ac.  :  .■:7. 

(701) 


§271  CARRIERS   OF   PASSENGERS.  (Ch.    21 

been  generally  published,  and  the  company  has  there- 
tofore been  in  the  habit  of  receiyiug  money  on  freight 
trains/ 

"But,  when  the  company  requires  tickets  to  be  pur- 
chased at  the  station,  it  must  furnish  conyenient  facili- 
ties to  the  public  by  keeping  open  the  office  a  reason- 
able time  in  advance  of  the  hour  fixed  by  the  time-table 
for  the  departure  of  trains.  Should  it  fail  to  do  this, 
a  person  desiring  to  take  passage  would  have  the  right 
to  enter  the  train,  and  be  carried  to  his  place  of  desti- 
nation, by  payment  of  the  regular  fare  to  the  conduct- 
or. To  permit  a  company  to  complain  of  the  violation 
of  its  own  rules,  necessitated  by  the  negligence  of  its 
own  agents,  would  be  absurd."  ^  So,  under  a  statute 
which  requires  railroad  companies  to  maintain  depots 

4  Lane  v.  Railroad  Co..  5  Lea  (Tenn.)  124;  Lake  Shore  &  M.  S.  R. 
Co.  V.  Greenwood,  70  Pa.  St.  873. 

5  Chicago  &  A.  R.  Co.  v.  Flagg,  43  111.  364.  See.  to  ."^ame  effect. 
Illiuois  Cent.  R.  Co.  v.  Johnson.  67  111.  312;  Cross  v.  Railroad  Co.,  50 
Mo.  Appi  664;  St.  Louis  &  S.  E.  Ry.  Co.  v.  Myrtle.  51  Ind.  566.  A 
passenger  who  is  luiable  to  procure  a  ticket  because  the  ticket  oflice  is 
closed  has  a  right  to  ride  on  a  freight  train  carrying  passengers  on 
tendering  the  usual  fare,  though  a  rule  of  the  company  requires  the 
purchase  of  tickets;  and  where  he  prociu'es  a  ticket  at  an  interme- 
diate station,  and  offers  to  pay  in  money  the  fare  for  the  distance  al- 
ready traveled,  the  conductor  has  no  right  to  eject  him,  on  the  ground 
that  he  failed  to  procure  another  ticket  from  the  intermediate  station 
to  his  starting  point.  Brown  v.  Railroad  Co.,  38  Kan.  634,  16  Pac. 
942.  But  in  Jones  v.  Railway  Co.,  17  Mo.  App.  158.  it  was  held  that, 
though  a  rule  of  the  company  forbids  passengers  to  ride  on  freiglit 
trains  without  a  ticket,  the  company  is  under  no  obligation  to  furnish 
facilities  for  obtaining  tickets  for  freight  trains  at  a  station  at  which 
it  has  no  agent,  and  at  which  freight  trains  are  forbidden  to  take  on 
passengei*s.  So.  in  Partee  v.  Railroad,  72  Ga.  347,  it  was  held  that 
the  rule  of  the  railroad  commission  prescribing  the  manner  in  which 

(702) 


•Ch.  21)  FARKS.  §  272 

and  receive  passeii«i,ei'S  at  iuifi sections  \viili  mlin-  rail- 
roads, a  railroad  couipauy  whiih  has  no  dcpm  ai  such 
a  point  of  interseetiou  cannot  expel  a  passenger  liniu  a 
freight  train,  who  tenders  the  proper  fare,  for  failiiif  to 
purchase  a  ticket  before  euterinj;  the  car,  as  rccpiircd 
by  the  rules  of  the  company."  So,  railroad  c«>nii>aiii«'s 
have  uo  right  to  discriminate  between  persons,  and  sell 
tickets  to  some,  and  refuse  others,  good  for  pjissage  on 
freight  trains.  A  person  having  duly  ai)plicd  for  a 
ticket,  and  having. been  refused,  without  jiisi  rausr, 
would  have  the  same  right  to  be  carried  upon  paying, 
or  offering  to  ])ay,  the  ticket  rate  of  fare,  as  if  he  had 
previously  purchased  a  ticket;  and  the  conductor  has 
no  right  to  charge  him  the  higher  ti-aiu  t'are.^ 

§  272.     FREE  PASS— CONTRACT  FOR. 

A  contract  by  which  a  railroad  com])any  agrees  to  is- 
sue plaintiff  an  annual  pass  receives  a  practical  con- 
struction by  plaintiff's  ap])licatiou  for  a  renewal  (►f  the 
pass  at  the  end  of  the  hrst  year;    and  atiei-  the  expiia 
tion  of  the  second  year,  where  he  neglects  to  apply  for 

ticket  offices  shall  he  kept  open  before  and  after  llie  arrival  <>f  train- 
applies  only  to  rejnilar  lasseufjer  trains;  and  one  who  takes  pas>n«e 
on  a  freight  train  may  be  required  to  pay  the  hijrhcr  train  fare.  tiioiiK'li 
the  ticket  office  was  not  open. 

6  Eddy  V.  Rider,  71)  Tex.  53,  15  S.  W.  ll.:,  construlnp  Kev.  St.  Tex, 
art.  4l'.''.S.  It  was  further  held  that  it  is  a  inatifr  <.f  im  iiiiporiauco 
that  there  was  a  station  not  very  distant  from  that  at  wld.li  iln>  pas 
senger  entered  the  car.  at  which  tickets  miK'lil  have  i)ceii  iinu;;lit;  for 
he  was  entitled  to  enter  tlie  train  at  any  point  made  by  law  a  siaiion 
for  the  reception  and  discharge  of  passengers,  and  to  be  carried  (here- 
from to  his  destination  on  compliance,  or  tender  of  co'iipllance.  with 
the  terms  iirescribed  l>y  law. 

7  Iiidiaii.iiM.lis.  r.  \-  C.  Ky.  Co.  V.  Kinanl.   HI  Ind.  -"X;. 

( 70:5 1 


§272  CARRIERS   OF  PASSENGERS.  (Ch.    21 

a  renewal,  and  is  ejected  from  a  train  for  nonpayment 
of  fare,  he  cannot  be  heard  to  say  that  it  was  the  com- 
pany's duty  to  issue  a  pass  without  application  there- 
for/ But  one  whom  a  railway  company  has  contract- 
ed to  carry  "free  of  charge"  is  under  no  obligation  to 
apply  for  a  pass;  and,  if  none  is  furnished  him,  he  has 
a  right  to  ride  without  one.  Hence  the  company  is  li- 
able for  his  expulsion  from  one  of  its  cars  because  of 
his  refusal  to  pay  fare,^ 

A  verbal  agreement  by  a  railroad  company,  upon  val- 
uable consideration,  to  issue  at  the  first  of  each  vear  an 
annual  pass  to  plaintiff,  for  himself  and  family,  for  ten 
years,  is  not  within  the  statute  of  frauds,  rendering- 
void  oral  agreements  which  are  not  to  be  performed 
within  one  year  from  the  making  thereof,  since,  by  the 
death  of  plaintiff  and  his  family,  the  contract  may  be 
performed  in  one  year.^  A  contract  to  issue  or  procure 
the  issuance  of  railway  passes,  annually,  through  the 
life  of  the  promisee,  is  not  an  entire  contract,  but  di- 
visible by  yearl}'  renewals,  and  the  measure  of  damages 
for  the  breach  of  the  same  is  the  value  of  the  transpor- 
tation to  such  promisee  during  the  years  the  breach 
has  occurred,  and  may  be  sued  upon  for  each  succes- 
sive breach.* 

An  agreement  of  a  railroad  company  to  issue  plain- 
tiff a  pass  for  life  is  not  binding  on  the  purchaser  or  les- 
see of  the  road,  in  the  absence  of  an  agreement  to  as- 

§  272.    1  Knopf  v.  Railroad  Co.,  85  Ya.  7G1),  8  S.  E.  787. 

2  Grimes  v.  Railway  Co.,  37  Minn.  66.  88  N.  W.  33. 

3  Weatherford,  M.  W.  &  N.  W.  Ry.  Co.  v.  Wood,  88  Tex.  191,  30  S. 
W\  859;    Railway  Co.  v.  English.  38  Kan.  110,  16  Pac.  82. 

4  Curry  v.  Railway  Co.  (Kau.  Sup.)  48  Pac.  579. 

(704) 


Ch.    21)  FARKS.  ^    JTo 

Slime  tlio  obliiiatif)!!,  tlumuli  it  ((iiiiiiim's  td  !•<•  hiiidini; 
(11  the  original  company  wliiili  mad**  thtMuiiti-att.  Sn, 
a  vote  of  stockholders  of  a  railroad  comi)any  i»»  issut- 
to  the  president  a  pass  for  life  is  a  mere  license,  aiid  is 
revoked  by  a  lease  of  the  road  t(>  another  (•(»nii)any ;  and 
the  lessee  is  not  bound  to  honor  the  ])ass/  Sm,  an 
agreement  by  a  railroad  company,  in  consideiaiinii  ..f 
the  grant  to  it  of  the  right  to  nse  water  from  tei  tain 
land,  that  the  owner  of  the  land  shonhl  be  eiiiiiled  lor 
ever  thereafter  to  travel  withont  charge  ni»on  the 
trains  of  the  com])any,  does  not  give  him  a  right  t(^  fni' 
transportation  over  lines  subsequently  constnicied  nr 
leased  by  iV  A  passenger  holding  a  pass  good  to  a 
specified  station  has  the  right  to  be  carried  thereon  to 
any  intermediate  station;  and  the  conductor  has  no 
right  to  eject  him  for  refusal  to  pay  fare  to  thai  sta- 
tion.^ 

§  273.     EEMEDIES  OT  CARRIER  FOR    NONPAYMENT, 

The  carrier  has  various  remedies  at  his  disposal  for 
nonpayment  of  fare  by  a  passenger.  In  the  first  place^ 
if  a  passenger  refuses  to  give  up  his  ticket  or  ]iay  fai-e^ 
an  action  will  lie  against  him  for  the  amount  of  his 
fare.^ 

5  Edtlv  V.  lliunant.  S2  Tex.  ^!54,  IS  S.  W.  502;  Dallas  rousol.  Trac- 
tion Ry.'  Co.  V.  Maddox  (Tex.  Civ.  App.)  31  S.  W.  702:  Dickoy  v.  Ilnil- 
load  Co.,  122  Mo.  32:3,  26  S.  W.  <!So;  Ruddick  v.  Ilailroud  Co.,  110  .Mo. 
2o,  22  S.   »\ .  4'.)0;   Helton  v.  Kiiilroad  <'o.,  2.")  Mo.  Api».  .■522. 

«  Turnor  v.  [lailioad  (^o..  70  N.  C.  1. 

7  Western  Md.  K.  <"o.  v.  Lynch.  S2  M.l.  2.;.-.,  :;!   .Ml.   10. 

s  Graham  v.  Railmad  Co.,  »!<!  Mo.  .">n(;. 

^  27:i.  1  Northern  K.  Co.  v.  l'a«e.  22  Harh.  (N.  Y.)  V.Vl  Hut  one 
uho  crosses  a  river  in  a  boai   imi   Whrnamii  u,  the  ..wuer  of  the 

'"•AT  \ 

V.   1  KKT.CAR.PAS. I  •")  ^*  "'' ' 


§  273  CARRIERS  OP  PASSENGERS.  (Ch.  21 

But  by  far  the  most  common  remedy  employed  by  the 
carrier  in  such  cases  is  the  remedy  of  self-help;  i.  e.  the 
ejection  of  the  passenger  from  the  vehicle.  This  sub- 
ject is  so  large  that  it  will  be  treated  in  a  chapter  by  it- 
self.^ But,  while  the  carrier  may  eject  a  passenger  for 
nonpayment  of  fare,  it  has  no  right  to  then  and  there 
detain  and  imprison  hini  until  he  does  pay.  At  most, 
the  passenger  is  a  debtor  to  the  carrier  for  the  amount 
of  his  fare,  and  that  debt  could  be  enforced  against  hiui 
by  the  same  remedies  which  any  creditor  has  against 
his  debtor.^  But  a  passenger  who  attempts  to  leave  a 
steamer  without  producing  his  ticket,  as  required  by 
the  company's  rules,  and  who  claims  that  he  has  lost  it, 
may  be  detained  on  board  of  the  boat  for  a  reasonable 
time  to  enable  the  company  to  investigate  on  the  spot 
the  circumstances  of  the  case,  where  he  knew  of  the 
regulation  when  he  became  a  passenger.* 

ferry,  and  wiio  lands  by  steiiplng  from  the  ferryman's  boat,  is  not 
liable  for  the  rate  of  ferriage  allowed  by  law,  tliousjli  he  may  be  liable 
for  an  invasion  of  plaintiff's  franchise,  or  for  trespass.  Heniy  v. 
Turner,  2  Port.  (Ala.)  23. 

-  S(  e  post.  e.  24.  The  carrier  lias  also  a  lien  on  the  i  assenyer's  bag- 
gage.   See  post,  §  (Joi. 

3  Lynch  v.  Railroad  Co..  90  N.  Y.  77.  In  this  case  it  was  further 
said:  "If  defendant  had  the  right  to  detain  him  to  enforce  payment 
of  the  fare  for  ten  minutes,  it  could  detain  him  for  one  lioiu',  or  a 
day,  or  a  year,  or  for  any  other  time,  until  compliance  with  its  de- 
mand. That  woiild  be  arbitrary  imprisonment  l)y  a  creditor  without 
due  process  or  trial,  and  continue  during  his  will  until  the  debt  should 
be  paid." 

4  Standisli  y.  Steamship  Co.,  Ill  Mass.  .J12.  But  in  Com.  v.  Schultz 
(1810)  Brightly,  X.  1'.  (Vn.)  2!),  it  was,  held  that  an  agreement  between 
a  master  of  a  vessel  and  a  iiassenger,  that  the  latter  shall  remain  on 
board  until  he  has  paid  his  lassagc  money,  is  valid.  Tiighman,  ('.  .J., 
.said:    '"Having  no  money,  nor  l:eing  able  to  lind  security  at  Anister- 


Ch.  21)  FARES.  §  273 

111  Eiio-laiid  and  in  some  of  the  states  of  tins  country, 
it  is  declared  to  be  a  misdemeanor  for  a  passenger  to 
enter  a  railroad  train  for  passage,  witli  intent  to  evade 
payment  of  faie>  Tlie  penalty  prescribed  by  the  New- 
Jersey  statute  against  any  one  who  entei-s  a  train  with- 
out paying  his  fare,  and  with  intent  to  avoid  payment 
of  it,  is  not  recoverable  from  a  passenger  who  takes  a 
train  which  does  not  stop  at  the  station  for  which  he 
holds  a  ticket,  and  who  rides  to  the  station  beyond 
without  payment  of  fare,  where  he  was  informed  when 
he  took  the  train  that  it  stopped  at  the  station  named 
in  his  ticket.'^ 

dam.  they  stipulated  not  to  leave  the  brig:  till  they  had  paid  their 
passage  money.  They  knew  very  well  that  they  could  make  no  money 
during  the  passage,  nor  could  they  expect  to  borrow  it  when  they 
arrived  in  a  strange  country.  But  it  was,  also  known  that,  by  indent- 
ing themselves  to  serve  for  a  term  of  years,  the  money  might  be 
raised;  and  in  order  to  secure  tne  captain  who  carried  them  over  the 
sea.  and  supplied  them  with  provisions,  they  ])romised  not  to  leave 
the  brig  imtil  they  had  paid  for  their  passage,  whicli  in  substance 
amounted  to  an  engagement  to  raise  the  money  by  indenting  them- 
selves before  they  left  the  brig.  Tlieir  object  was  to  advance  tlioir 
fortunes  in  a  new  country,— an  object  wliich  had  been  frequently  at- 
lained  by  tlieir  countrymen  who  had  gone  to  America  before  them: 
and  it  is  not  easy  to  conceive  any  better  means  of  accomplishing  their 
object  than  those  which  were  taken.  It  is  not  probable  that  any 
.■^uch  agreement  would  be  held  valid  in  ihe  United  States  to-tlay.  'I'he 
system  of  indenting  emigrants  for  a  series  of  years  would  probalily 
violate  tlie  am«>ndment  to  the  federal  constitution  abolisliing  slavery 
and  involuntary  servitude  except  as  a  punishment  for  crime. 

5  Pub,  St.  N.  H.  1891,  p.  4.54.  §  7;  Revision  N.  .T.  p.  912.  §§  18,  19;  1 
Comp.  Laws  Utah,  1888,  p.  T9i;;  V.  S.  ISOi,  §  3917.  See.  also.  post. 
p.  783. 

«  Harris  v.  Itaiboad  Co..  -^S  N.  .7.  Law.  -Js-J.  33  .\tl.  T9;i.  A  p.assen- 
gcr  who  has  paid  his  fare  to  a  certain  station,  and  who  leaves  the 
train  at  an  intermediate  station,  the  fare  to  which  exceeds  tlie  fare 

(TOT) 


^  274  CARRIERS  OF  PASSENGERS.  (Cll.  21 


§  274.     RECOVERY  BACK  BY  PASSENGER. 

Where  one  pays  passage  money,  to,  be  transported 
from  one  place  to  another,  the  contract  is  absolute  to 
ti'ansport  to  the  place  of  destination ;  and,  if  the  vessel 
is  lost  on  the  voyage,  the  contract  is  broken,  and  the 
passenger  may  recover  back  the  entire  passage  money. 
Nor  is  the  nonperformance  excused  by  inevitable  acci- 
dent or  necessity,  even  though  this  proceed  from  the 
act  of  God.^      But  where  a  vessel  deviates  from  her 

chargecl  for  the  station  to  which  his  ticliet  was  issued,  does  not  vio- 
late a  by-law  of  the  company,  subjecting  a  passenger  who  enters  a 
carriage  without  having  paid  his  fare  to  a  penalty.  Reg.  v.  Frere,  4 
El.  &  Bl.  598.  A  by-law  of  a  railway  company  requiring  a  passenger 
to  show  and  deliver  up  a  ticket  whenever  required,  under  a  penalty 
of  paying  fare  from  the  point  at  which  the  train  originally  staited  to 
the  end  of  his  journey,  is  unreasonable  and  void,  because  the  penalties 
imposed  are  not  equal,  and  vary  according  to  the  distance  the  train 
has  traveled,  so  that  a  passenger  who  has  traveled  only  the  last  few 
miles  will  have  to  pay  as  much  fare  as  one  who  started  at  the  first 
station.  Saunders  v.  Railway  Co.,  5  Q.  B.  Div.  4.56;  Dyson  v.  Rail- 
way Co.,  7  Q.  B.  Div.  32.  In  Brown  v.  Railway  Co.,  2  Q.  B.  Div.  406, 
it  was  held  that,  under  such  a  by-law,  the  company  must  make  de- 
mand of  the  specific  sum  payable  before  it  can  recover  the  same  from 
the  passenger. 

§  274.  1  Cope  V.  Dodd,  13  Pa.  St.  33;  Stone  v.  The  Relampago.  23 
Fed.  Gas.  158.  See,  also,  Brecknock  Canal  v.  Pritchard,  6  Term  R. 
750;  Howland  v.  The  Lavinia,  1  Pet.  Adm.  126,  Fed.  Cas.  Xo.  6,797. 
Passage  money  is  not  due  until  the  end  of  the  voyage;  and,  if  the  ves- 
sel does  not  proceed  to  destination,  the  passenger  has  the  right  to  re- 
cover the  entire  passage  money.  Howland  v.  The  Lavinia,  1  Pet. 
Adm.  126,  Fed.  Cas.  No.  6,797.  Plaintiff  took  passage  on  defendant's 
vessel  from  San  Francisco  to  Panama,  paying  in  advance  therefor  .?50. 
Tlie  ship  was  wrecked  in  a  storm,  and  plaintiff  was  put  ashore  at  a 
point  less  than  half  the  distance  to  the  port  of  destination,  without 
any  provision  made  by  defendant  to  send  him  on  to  destinall  u. 
(70S) 


Ch.  21)  FARES.  §  274 

direct  course  through  necessity,  and  puts  into  a  port 
for  repair,  and  the  owner  then  sends  her  on  a  different 
voyage,  a  passenger,  to  whom  the  owner  offered  a  pas- 
sage on  another  vessel,  larger  and  more  commodious 
than  his  own,  from  the  port  of  distress  to  his  destina- 
tion, and  who  refuses  such  offer,  cannot  recover  from 
the  owner  any  part  of  his  passage  money,  since  it  is  his 
own  fault  that  he  did  not  pursue  his  journey.^ 

It  is  perhaps  questionable  whether  or  not  the  same 
principles  would  apply  to  carriage  by  raihvay.^  The 
question  seems  not  to  have  been  raised  in  any  case  of 
land  travel.  It  has,  however,  been  held  that  where  a 
purchaser  of  a  season  ticket,  entitling  him  to  travel  by 
defendant's  railway  for  one  mouth,  makes  a  deposit 
over  and  above  the  price  charged  for  the  ticket,  on  con- 
dition, among  other  things,  tliat  the  deposit  is  to  be  for- 
feited if  the  ticket  is  not  delivered  up  on  the  day  after 
its  expiration,  the  ticket  holder  must  perform  the  con- 
dition as  it  is  written;  and  he  cannot  recover  the  de- 
posit on  showing  a  tender  of  th^  ticket  after  the  time 
limited,  though  it  was  within  a  reasonable  time  there- 
after.* 

Held,  that  plaintiff  was  entitled  to  recover  the  entire  amount  of  pas- 
sage money  paid  by  him,  on  the  theory  that  the  contract  of  carriajii' 
was  an  entire  one,  and  that  nothing  was  earnetl  thereunder  until 
plaintiff  had  been  carried  to  his  destination.  Brown  v.  Harris,  -' 
Gray  (Mass.)  359. 

2  Detoucher  v.  I'cck,  0  .Johns.  (N.  Y.)  '-'lO. 

8  See  iwst,  §  535,  as  to  nuasuru  of  damages  for  failure  to  carry  pas- 
senger to  destination. 

4  Cooper  v.  Railway  Co.,  4  Exch.  Div.  88.  In  an  action  against  a 
railroad  company  by  the  purchaser  of  a  connnulalion  ticket  good  for 
(iO  rides,  who  fails  to  use  the  whole  of  it,  to  recover  the  value  of  the 

(70iO 


§  27 -J  CARRIERS  OF  PASSENGERS.  (^Ch.  21 

nnused  portion,  the  company,  in  computing  the  damages,  is  entitled  to 
charge  full  fare  for  the  rides  actually  taken  on  the  ticket,  and  not  the 
reduced  rate,  that  being  a  condition  specifled  in  the  ticket.  Snith  v. 
Kailroad  Co.,  11  Pa.  Co.  Ct.  R.  555.  In  an  old  English  case  it  was  hell 
that  if  a  person  takes  a  place  on  a  stagecoach,  and  pays  at  the  time 
only  a  deposit,  as  half  fare,  for  example,  and  is  not  at  the  inn  when 
the  coach  is  setting  off,  the  proprietor  of  the  coach  is  at  liberty  to  fill 
up  his  place  with  another  passenger;  but  if,  at  the  time  of  taking  his 
place,  he  pays  the  whole  of  the  fare,  the  proprietor  cannot  dispose  of 
his  place,  but  he  may  take  it  at  any  stage  of  the  journey  he  sees  fit. 
Ker  V.  Mountain  (1793)  1  Esp.  27. 
(710) 


Ch.  22)  TICKETS.  §  275 

CHAPTER  XXII. 

TICKETS, 

§  27o.  Nature  and  Effect. 

2TU.  Coiiilltious  and  Sripularions  iu  Ticket— Construction. 

-1~.  Collection  and  Surrender  of  Tickets. 

:27S.  Same— Detaching    Couijous    from    Mileage    or    Commutation 
Tickets. 

279.  Loss  of  Ticket. 

280.  Riding  Extra  Distance  or  Tart  of  Distance. 

281.  :^iding  in  Reverse  Direction  trom  That  Indicated  on  Ticket. 

282.  Assignability  of  Ticket. 

283.  Forfeiture  of  Ticket. 

284.  Proviiyon  for  Identitication  of  Purchaser. 

285.  Limitation  as  to  Time. 

280.  Same— Limitation  by  Regulation  not  Expressed  in  Ticket. 

287.  Same— Limitation  must  be  Reasonable. 

288.  Same — Construction  of  Limitation. 
28'J.  Same— Waiver  of  Limitation. 

290.  Same— Maine  Statute. 

291.  Continuity  of  Joiu'ney. 

292.  Same — Coupon  Tickets. 

293.  Same— Stop-Over  Privileges. 

294.  Same — California  Statute. 

295.  Street-Car  Transfers  and  Tickets. 

§  275.     NATURE  AND    EFFECT. 

A  ticket  issued  to  a  passenger  by  a  carrier,  merely 
naming  the  stations  bet-ween  -which  it  is  good, 
is  in  the  nature  of  a  receipt,  rather  than  of  a 
contract  between  the  parties. 

A  passage  ticket  merely  nainiug  the  places  between 
wliicli  it  is  good  for  passage  does  not  purport  to  be  a 
contract.      It  is  rather  iu  the  nature  of  a  receipt  for  the 

(711) 


§  275  CARRIERS  OP  PASSENGERS.  (Ch.  22 

passage  money;  and  its  office  is  to  serve  as  a  token  to 
enable  the  persons  having  charge  of  the  carrier's  ve- 
hicle to  recognize  the  bearer  as  the  person  who  is  enti- 
tled to  be  carried.^  Indeed,  in  some  modes  of  convey- 
ance— that  by  street  car,  for  example — it  is  not  custom- 
ary for  the  caiTier  to  issue  any  ticket.  So,  in  cases 
where  tickets  are  issued,  the  principal  duty  of  the  car- 
rier— that  of  exercising  care  for  the  passenger's  safety 
— is  never  expressed  therein.  It  has  even  been  held  to 
be  unnecessary  for  the  ticket  to  express  in  words  what 
the  law  tacitly  implies.-  So  far,  however,  as  the  terms 
of  carriage  are  set  forth  in  the  ticket,  they  are  binding, 
of  course,  provided  they  do  not  conflict  with  some  law 
or  rule  of  public  policy.^  But,  so  far  as  not  expressed, 
parol  evidence  is  admissible  to  show  the  elements  of 
the  contract.*      Thus,  it  has  been  held  that  the  rules 

§  275.  1  Quimby  v.  Vanclerbilt,  17  N.  Y.  306;  Williams  v.  Vander- 
bilt,  28  N.  Y.  217.  affirming  29  Barb.  (N.  Y.)  4U1;  Kawson  v.  Railroad 
Co.,  48  N.  Y.  212.  217. 

2  Gordon  v.  Railroad,  .52  N.  H.  5!)U. 

3  Howard  v.  Railroad  Co.,  Gl  Miss.  194;  Dietrich  v.  Railroad  Co., 
71  Pa.  St.  432.  In  an  action  to  recover  the  value  of  a  railroad  ticket, 
lost  before  use,  by  the  terms  of  which  plaintiff  and  his  family  were 
entitled  to  ride  25  trips,  evidence  that,  at  the  time  of  its,  purchase, 
the  ticket  agent  orally  agreed  to  issue  a  duplicate  in  case  of  loss,  is 
inadmissible,  under  the  rule  that  an  instrument  in  writing  may  not 
be  added  to  by  proof  of  a  contemporaneous  oral  agreement,  and  that 
the  writing,  if  not  ambiguous,  except  in  cases  of  fraud,  mistake,  or 
surprise,  is  conclusive  of  what  the  parties  have  agreed.  Simis  v.  Rail- 
road Co.,  1  Misc.  Rep.  179,  20  N.  Y.  Supp.  G39. 

■i  See  cases  supra;    Peterson  v.  Railway  Co.,  SO  Iowa,  92,  45  X.  W. 
573;    Burnham  v.  Railway  Co.,  63  Me.  298.     A  substantial  independ- 
ent contract  of  carriage  will  govern  the  rights  of  the  parties,  though 
it  is  not  expressed  in  the  ticket.    Van  Buskirk  v,  Roberts,  31  X.  Y.  661, 
(712) 


Ch    22)  TICKETS.  §  276 

and  regulations  of  the  company  as  to  the  running  of  its 
trains  are  admissible  in  its  favor. ^' 

The  possession  of  a  railroad  ticket,  it  has  been  held, 
is  prima  facie  evidence  that  the  holder  has  paid  the  reg- 
ular price  for  it,  and  that  he  has  the  right  to  be  ti*ans- 
ported  at  some  time, between  the  phues  specified  there- 
in, on  some  passenger  train.  And,  if  it  is  uumutilated, 
the  presumption  is  that  it  has  never  been  used  for  that 
purpose.  It  is  therefore  evidence  of  the  agreement  or 
undertaking  of  the  corporation  to  transport  the  holder 
to  the  place  mentioned,  on  its  passenger  cars,  for  a  con- 
sideration by  him  paid.® 

§  276.     CONDITIONS  AND  STIPULATIONS  IN  TICKET 

—CONSTRUCTION. 

It  has  become  customary  for  carriers  of  passengers 
to  issue  tickets  containing  many  conditions  and  stipu- 
lations. The  question  as  to  the  legality  of  some  of 
these  conditions,'  and  as  to  whether  they  are  binding 
on  a  passenger  from  the  mere  fact  that  he  receives  the 
ticket,  without  any  other  manifestation  of  assent,'  are 
questions  which  will  be  subsequently  considered. 

But  one  Avho  signs  the  conditions  on  the  back  of  a 
railroad  ticket  assents  to  their  terms,  so  far  as  they  ai'e 
legal  and  valid.      It  would  tend  to  disturb  the  force  of 

B  Dietrich  v.  Railroad  Co.,  71  Pa.  St.  432;  Lake  Shore  &  M.  S.  Ry. 
Co.  V.  Rosenzweig,  113  Pa.  St.  519,  53G,  6  Atl.  545.  As  to  the  con- 
chisiveness  of  the  ticket  as  between  passenger  and  conductor,  see  post, 
^  .?17  et  seq. 

>:  Pier  V.  Finch,  24  Barl).  (X.  Y.)  r>14. 

§  27«J.    1  See  post,  §§  380,  (527. 

2  S.  0  post,  §§  399,  G29. 

(713) 


§  276  CARRIERS  OF  PASSENGERS.  (Ch.  22 

all  such  contracts  if  one  in  possession  of  ordinary  ca- 
pacity and  intelligence  were  allowed  to  sign  a  contract, 
and  act  under  it  in  the  enjoyment  of  all  its  adA'antages, 
and  then  to  repudiate  it,  upon  the  ground  that  its  terms 
were  not  brought  to  his  attention.  In  the  absence  of 
all  fraud,  misrepresentation,  or  mistake,  it  must  be  pre- 
sumed that  he  read  the  contract,  and  assented  to  all  its 
terms/ 

In  construing  a  special  contract  embodied  in  a  rail- 
road ticket,  and  limiting  the  purchaser's  rights,  lan- 
guage of  uncertain  or  doubtful  meaning  should  gener- 
ally be  taken  in  its  strongest  sense  against  the  com- 
pany by  which  the  ticket  was  issued  and  sold,  and  in 
favor  of  the  purchaser.  This  rule  of  construction  is  in 
accord  with  common  sense.  "It  may  be  supposed  that 
one  who  himself  writes  or  prepares  a  written  contract 
in  which  he  is  interested  will  be  sure  to  use  language 
which  he  conceives  is  best  adapted  to  secure  to  himself 

s  Bethea  v.  Railroad  Co.,  26  S.  C.  91,  1  S.  E.  372.  The  failure  of 
a  purchaser  of  a  ticket,  sold  at  a  reduced  rate,  to  sign  the  conditions 
thereto  attached,  does  not  invalidate  the  ticket,  where  he  was  not 
requested  to  sign  it.  and  the  company  retains  the  consideration,  since 
such  signature  is  merely  a  mode  of  identifying  the  purchaser. 
Gregory  v.  Railroad  Co.,  10  Neb.  250,  4  N.  W.  1025.  A  condition  in  a 
thousand-mile  ticket  requiring  it  to  be  s,tamped  by  the  agent  selling  it, 
and  signed  by  the  purchaser,  is  waived  by  the  sale  and  delivery  of  the 
ticket  to  a  purchaser,  ignorant  of  the  condition,  without  insisting  on 
its  fulfillment,  and  by  honoring  the  ticket  for  several  trips  without 
requiring  it  to  be  signed.  And  a  conductor  is  not  thereafter  justified, 
while  the  company  still  retains  plaintiff's  money,  in  ejecting  him  from 
its  cars,  for  his  failure  to  sign  the  ticket,  which  has  already  gone  into 
full  effect  between  the  parties,  and  for  his  refusal  to  pay  the  usual 
fare  in  money  for  a  passage  which  was  already  paid  for.  Kent  v.. 
Railroad  Co.,  45  Ohio  St.  284.  12  N.  E.  79S. 
(714) 


Ch.  22)  TICKETS.  §  277 

the  full  benefit  of  everything  lie  could  (.laim  imder  the 
agreement  the  writing  is  intended  to  evidence.  It  is 
therefore  allowable  and  just,  at  the  instance  of  the  op- 
posite party,  to  scan  critically  the  phraseology  em- 
ployed. *  *  *  This  is  obviously  right  for  the  addi- 
tional reason  that  as  the  purchaser  had  nothing  what- 
ever to  do  with  preparing  the  ticket,  and  had  no  voice 
in  the  wording  of  it,  it  was  his  right  to  claim  under  it 
the  benefit  of  the  strongest  interpretation  which  could 
be  made  in  his  favor."* 

§  277.     COLLECTION  AND    SURRENDER  OF  TICKETS. 

A  rule  or  custom  of  a  railroad  company  requiring 
passengers  to  surrender  their  passage  tickets  to  the 
conductor  on  demand,  and  receive  his  check  in  place  of 
tiiem,  is  a  reasonable  rule  or  custom;  and  a  passen- 
ger's refusal  to  surrender  the  ticket  on  demand  will  jus- 
tify the  conductor  in  exacting  from  him  his  fare  in 
cash,  and,  on  his  refusal  to  pay,  in  expelling  him  from 
the  car.^      But  a  passeuger  cauuot  be  required  to  give 

*  Georgia  Railroad  &  Banking  Co.  v.  Clarke  (Ga.)  25  S.  E.  308.  As 
to  construction  of  limitation  as  to  time,  see  pest,  §  28S.  As  to  con- 
struction of  limitation  of  liability,  see  post,  §  401. 

§  277.  1  Northern  R.  Co.  v.  Page,  22  Barb.  (N.  Y.)  130;  Biiltimorc 
&  O.  R.  Co.  V.  Blocher,  27  Md.  277;  Bennett  v.  Railroad  Co.,  7  I'liila. 
(Pa.)  11.  Tlie  regulations  of  a  railroad  company  tliat  a  monthly  com- 
iiiut.ition  ticket  shall  be  surrendered  by  tlie  iiassenger  to  the  con- 
ductor on  the  last  trip  taken  during  the  pciind  Inr  whicli  it  is  issued 
is  a  reasonable  regulation  of  tlie  railroad  coniitany  in  tlie  conduct  of 
its  business  as  a  cumiiion  carrier  of  passengers;  and  if  this  rcgnlii- 
ti(in  l)e  indorsed  on  tlic  ticket,  and  tlie  passenger  holding  tlie  ticket 
fails  or  refuses  to  surrender  it  on  Ids  last  trip,  or  pay  liis  tare  to  the 
conductor,  according  to  the  legally  established  laies  of  the  company, 


^  278  CARRIERS  OF  PASSENGERS.  (Ch.  22 

uj)  liis  ticket,  short  of  the  station  to  which  it  entitles 
him  to  be  carried,  unless  a  check  is  tendered  him,  to 
show  that  he  has  paid  his  fare.^  After  a  conductor  has 
taken  uj)  a  ticket,  he  is  required  to  exercise  more  than 
ordinar}'  care  in  seeing  that  the  passenger  is  proA'ided 
with  a  check  or  other  means  of  continuing  his  journey." 
A  regulation  that  the  conductor  or  ticket  collector  of 
a  crowded  suburban  train  shall  not  iDermit  passengers 
to  go  past  him,  into  that  part  of  the  train  where  he  has 
completed  the  collection  of  tickets,  unless  they  present 
their  tickets,  pay  their  fare,  or  satisfy  him  that  they 
have  done  so,  is  a  reasonable  one;  and  the  passenger 
must  conform  to  it,  whether  or  not  he  had  notice  of  it 
when  he  purchased  his  ticket.  If  a  passenger,  in  vio- 
lation of  the  rule,  undertakes  to  pass  the  conductor,  the 
latter  is  justified  in  using  reasonable  force  to  prevent  it, 
and  in  ordering  him  to  leave  the  train  or  pay  fare.* 

§  278.     SAME— DETACHING     COUPONS    FROM    MILE- 
AGE OR  COMMUTATION    TICKETS. 

A  condition  in  a  coupon  ticket  that  the  coupons  are 
to  be  detached  by  or  in  the  presence  of  the  conductor, 
and  that  they  will  be  accepted  "for  passage  only  when 

he  can  be  ejected  from  the  car.  Rogers  v.  Raih-oad  Co.  (N.  J.  Sup.)  34 
Atl.  11. 

2  State  V.  Thompsou,  20  N.  H.  250.  Where  the  passenger  shows  the 
conductor  his  ticket,  but  declines  to  give  it  up  unless  furnished  with 
a  seat,  the  conductor  has  no  right  to  seize  it,  and  take  it  by  force 
against  the  passenger's  will,  even  though  the  passenger  may  have 
waived  his  right  to  a  sear.  Cincinnati,  C,  C.  &  I.  Ky.  Co.  v.  Mc- 
Lean, 1  Ohio  Cir.  Ct.  R.  112. 

3  Sloane  v.  Railway  Co..  Ill  Cal.  (i68.  44  Fac.  320. 

4  Falier  v.  Railway  Co.,  G2  Minn.  433,  G4  X.  W.  918. 

(716) 


Ch.  22)  TICKETS.  §  278 

accompanied  by  the  ticket/'  is  reasonable  and  valid.' 
The  refusal  of  the  passenger  to  show  his  ticket  to  the 
conductor  on  demand,  and  his  insistence  upon  making 
payment  of  his  fare  with  coupons  which  he  himself  has 
detached,  are  a  Tiolation  of  the  contract  by  him,  for 
which  he  may  be  put  off  the  train,  with  such  force  as 
may  be  necessary  in  case  he  refuses  to  go  voluntarily.- 
A  conductor  has  the  right  to  determine  for  himself 
from  what  part  or  parts  of  a  mileage  book  the  coupons 
are  to  be  detached,  since  he  is  the  person  who  is  author- 
ized to  detach  them,  and  he  is  not  bound  to  heed  the 
passenger's  request  to  tear  the  coupons  out  of  the  back 
part  of  the  book,  instead  of  the  front  part.^ 

It  has  even  been  held  that  a  condition  in  a  mileage 
ticket  sold  at  a  reduced  rate,  that  coupons  are  not  good 
for  passage  if  detached,  is  valid;  and  where  the  pas- 
senger detaches  them  himself,  though  warned  to  de- 
sist by  the  conductor,-  the  latter  is  justified  in  refusing 
to  receive  the  detached  coupons,  even  Avhen  the  passen- 
ger offers  the  ticket  or  book  to  identify  the  coupons.' 

§  278.  1  Boston  &  M.  R.  R.  v.  Chipman.  146  Mass.  107,  14  N.  E. 
940.  When  a  coupon  ticket  on  a  street  railroad,  good  for  20  rides, 
provides  tliat  tlie  coupons  are  not  good  unless  torn  off  b.v  the  con- 
ductor, the  passenger  has  no  rijrht  to  detach  a  coupon  from  ilie  main 
ticket,  and  present  it  to  the  conductor,  and  at  the  same  time  refuse 
to  show  the  main  ticket.  In  such  a  case  he  may  be  ejocte.l  from  the 
car.     AValk(>r  v.  Railroad  Co.,  33  How.  I'lac.  (N.  Y.)  327. 

-'  Louisville,  N.  &  (J.  S.  R.  Co.  v.  Harris,  0  Lea  (Teun.)  ISO. 

3  Eaton  v.  Mclntire.  88  Me.  578,  34  Atl.  :*•!:,. 

4  Norfolk  \-  W.  R.  Co.  v.  Wysor,  82  Va.  2.-.(t.  One  who  tenders  a 
detached  coupon,  when  the  rules  of  the  company  rciiuuc  tlie  ciuiion 
to  be  detached  by  the  conductor,  is  in  the  same  condition  as  if  he  had 
refused  to  pay  any  fare  at  all.  De  Lucas  v.  Railroad  Co.,  38  La. 
Ann.  930.     A  thousand-mile  ticket,  good  over  the  road  of  the  selling 

(717) 


§  278  CARRIERS  OF  PASSENGERS.  (Cll.  22 

But  the  holder  of  a  round-trip  ticket  has  the  riglit  to 
ride  from  the  return  station  to  the  going  station  on  tlie 
return  coupon,  though  he  has  not  used  the  going  cou- 
pon; and  the  fact  that  the  going  coupon  becomes 
worthless  when  detached  from  the  return  coupon  fur- 
nishes the  company  with  no  excuse  for  refusing  to  ac- 
cept the  return  coupon  unless  the  entire  ticket  is  sur- 
rendered/ But  such  a  condition  mav  be  waived  bv 
the  parties  after  the  purchase  of  the  ticket.  The  prac- 
tice of  receiving  as  fare  the  detached  coupons,  without 
presentation  of  the  rest  of  the  ticket,  is  evidence  of  such 
waiver.  Conceding  that  the  carrier  has  a  right  to  re- 
voke his  consent  to  such  waiver  after  he  has  received 
some  of  the  detached  coupons,  it  is  his  duty  to  give  rea- 
sonable notice  of  such  intended  revocation.  If,  with- 
out such  notice,  and  relying  on  such  waiver,  tlie  holder 
of  the  ticket  detaches  a  coupon,  and  takes  it  with  her 
on  the  train,  without  taking  the  rest  of  the  ticket,  the 
carrier  cannot,  when  such  coupon  is  thus  presented  for 
fare,  revoke  his  consent  to  the  waiver,  so  as  to  deprive 
her  of  the  use  of  the  coupon,  or  compel  her  to  pay  ex- 
tra fare.^      So,  also,  a  condition  in  the  going  coupon  of 

company  and  tliat  of  a  leased  road,  contained  two  sets  of  flfrures. — 
300  black  fignres,  and  7(J0  red  figures— and  directions  to  the  con- 
ductor to  punch  out  the  red  figures  for  miles  traveled  on  the  selling 
road,  and  the  black  figures  for  miles  traveled  on  the  leased  road.  The 
tK-Uet  was  signed  by  tlie  purcliaser,  who  expressly  assented  to  all  its 
terms.  Held  that,  after  the  red  figures  had  been  exhausted  by  travel 
over  the  selling  road,  the  purchaser  had  no  right  to  travel  on  that 
road  by  virtue  of  the  unpunehed  black  figures.  Terre  Haute  &  I.  R. 
Co.  V.  Fitzgerald,  47  Ind.  79. 

5  Chicago,  St.  L.  &  P.  R.  Co.  v.  Holdridge,  118  Ind.  281,  20  N.  E.  &37. 

c  Thompson  v.  Truesdale,  Gl  Minn.  129,  63  N.  W.  253. 

(718) 


Oh.  22)  TICKETS.  §  2<9 

a  round-trip  ticket  that  it  shall  be  void  if  detached  fri)m 
the  going  coupon,  is  waived  by  the  conductor's  mistake 
in  detaching  the  return  coupon,  and  detaining  it  on  the 
going  trip." 

§  279.     LOSS  OF  TICKET. 

The  loss  of  a  ticket  by  a  passenger  falls  on  him,  and 
not  on  the  carrier.'  The  reason  is  obvious.  Passage 
tickets,  in  the  absence  of  resti'ictive  conditions,  are  as- 
signable, and  are  good  in  the  hands  of  any  one.  If  the 
loss  of  a  ticket  were  a  sufficient  excuse  for  nonpayment 
of  fare,  the  carrier  might  be  subjected  to  the  burden  of 
carrying  two  or  more  persons  for  a  single  fare.  This 
rule  holds  good  even  in  the  absence  of  any  stipulation 
in  the  ticket;  and,  of  course,  a  condition  in  a  commu- 
tation ticket,  sold  at  a  reduced  rate,  that  no  duplicate 
ticket  will  be  issued,  is  binding  on  the  holder;  and  if, 
by  casualty,  his  ticket  has  been  lost,  so  that  he  cannot 
produce  it,  the  company  may  exact  from  him  the  regu- 
lar fare  paid  by  other  passengers."  Nor  is  there  any 
distinction  in  the  rights  of  the  passenger  whether  he 
loses  or  mislays  his  ticket  before  getting  on  the  ti'ain  or 

7  Pennsylvania  Co.  v.  Bray.  125  Ind.  ■_>2i),  25  N.  E.  439. 

§  279.  1  Standish  v.  Steauisliip  Co..  lU  Mass.  512;  Duko  v.  Uaihvay 
Co.,  14  U.  C.  Q.  B.  .3(!9,  :J7T.  If,  by  any  inadvertence,  carelessness,  or 
casualty,  the  licket  of  a  passeuger  has  been  lost  by  him.  so  tliat  he 
cannot  prodm-e  it,  the  legal  fare  may  be  exacted  from  iiim:  iind  tlie 
conductor  is  not  bound  to  investigate  the  excuse^  of  tlie  ifassenger  for 
its  iionproduction.  ami  determine  whether  it  is  made  in  good  faitli  or 
not.  He  lias  the  riglit  to  have  the  ticlcet  produced  or  surrendered.  <»r 
the  fare  i)aid;  and,  if  neitlier  event  oc-em-s.  he  can  exp(>l  the  passen- 
ger.     Rogers  v.  Railroad  Co.  (N.  .7.  Sup.)  :U  All.  11. 

2  Riltley  v.  Transportation  Co.,  :J1  N".  .1.  Law,  ;i.S8. 

(719) 


§    "279  CARRIERS   OF  PASSENGERS.  (Ch.    22 

afterwards.  Hence  the  fact  that  passengers  are  re- 
quired to  exhibit  their  ticlvets  to  a  train  hand  before 
entering  the  train  does  not  excuse  a  passenger  from 
surrendering  his  ticket  to  tlie  conductor  on  demand; 
and  the  fact  that  the  passenger  has  lost  or  mislaid  it 
after  getting  on  the  train  gives  him  no  right  to  ride 
without  payment,  as  required  by  the  rules  of  the  com- 
pany.^ So,  a  passenger  who  surrenders  his  ticket  or 
coupon  to  a  conductor,  and  receives  from  him  a  check 
evidencing  his  right  to  ride,  must  produce  it  on  demand 
b}'  another  conductor,  who  took  charge  of  the  train  aft- 
erwards. If  the  check  has  been  lost,  the  loss  is  the 
passenger's,  and  he  must  pay  his  fare  or  leave  the  train, 
since  it  can  be  used  by  a  third  person,  and  the  company 
may  be  thus  defrauded.* 

But  it  has  been  held  that,  tJiough  a  rule  of  a  sleeping- 
car  company  requiring  the  conductor  to  receive  either 
a  ticket,  a  pass,  or  money  before  giving  a  passenger  a 
berth  is  reasonable  and  just,  yet  where  a  passenger  fur- 
nishes a  conductor  with  clear  and  satisfactory  evidence 
that  he  has  purchased  a  ticket  entitling  him  to  a  par- 
ticular berth,  but  has  lost  it,  and  the  circumstances  are 
such  that  it  is  reasonabh'  certain  the  company  cannot 
be  defrauded  by  the  ticket  being  in  the  hands  of  an- 
other, he  ought  to  have  the  berth. ^ 

3  Louisville,  N.  &  G.  S.  K.  Co.  v.  Flemiu-   14  Lea  (Tenn.)  128.  148. 

4  Jerome  v.  Smith,  48  Vt.  230. 

n  Pullman  Palace  Car  Co.  v.  Reed,  75  111.  125.    See.  also,  post.  §  317 
et  seq.,  as  to  duty  to  produce  a  proper  ticket  to  tlie  conductor. 

(720) 


Ch.  22)  TICKETS.  §  2>iO 


§  280.     RIDING  EXTRA  DISTANCE  OR  PART  OF  DIS- 
TANCE. 

One  who  boards  a  train  at  a  more  remote  station  than 
that  indicated  as  the  starting  point  of  his  jonrney  by 
his  ticket  cannot  travel  the  extra  distance  on  his  ticket, 
but  must  pay  fare  from  the  station  where  he  got  on  to 
the  starting  point  designated  in  liis  ticl^et.^  "A  regu- 
lation by  which  railroads,  when  passengers  are  found 
on  their  trains  who  have  no  tickets,  or  who  have  only 
forfeited  tickets,  require  of  such  passengers  fare,  not 
only  for  that  part  of  the  route  to  be  traveled,  but  also 
for  the  part  already'  passed  over,  is  certainly  a  reason- 
able one.  If  persons  who  are  attempting  to  ride  with- 
out paying  fare  can  have  the  past  forgiven,  and  need 
pay  only  from  the  place,  and  time  of  their  detection, 
would  not  this  be  the  offer  of  a  premium  for  an  attempt- 
ed undue  advantage  of  the  railroad?"  "      So,  where  a 

§  280.  1  Illinois  Cent.  U.  Co.  v.  Billinfrton  (Ky.)  30  S.  W.  885;  Clil- 
cago  &  E.  I.  H.  Co.  V.  Adams,  GO  111.  App.  571. 

2  Manning  v.  Railroad  Co.,  95  Ala.  392,  11  South.  8.  But  a  some- 
what different  conclusion  has  been  reached  where  the  passcng.-r  boards 
a  train  imder  the  belief  that  he  has  a  valid  ticket,  and  it  turns  out 
that  it  is  not  good.  A  passenger  who  had  stopped  off  at  an  intermedi- 
ate station  was  informed  by  the  conductor,  on  resuming  his  iourni'y. 
tliat  his  ticket  was  not  good,  and  that  he  would  have  to  ]»ay  fare  or 
get  oft"  at  the  next  station.  Wlien  tlie  train  arrived  at  tlie  station,  tlic 
passenger,  who  had  acted  in  good  faith,  purcliased  a  new  ticket  for 
his  destination.  The  conductor  declined  to  receive  it,  unless  he  paid 
the  fare  from  the  station  wlici'c  lie  boarded  tlic  train  lo  tlie  station 
where  he  purchased  the  ticket.  Held,  that  his  ejection  from  the  train, 
on  refusing  to  pay  the  fare  demanded,  was  wrongful,  since  lie  had 
done  notliing  to  forfeit  liis  riglit  to  make  a  contract  of  carriage  by  llie 
pnrcliase  of  a  ticket.  Ward  v.  Ilaihvay  Co.,  uli  Hun,  2(iS,  9  N.  V. 
Supp.  '.',11. 

v.  1  FET.C.Ml.rAS. — 46  (Tl'I) 


§  280  CARRIERS  OF  PASSENGERS.  (Ch.  22 

railroad  coDipany  issues  an  excursion  ticket  at  a  re- 
duced rate,  conditioned  that  it  shall  be  void  if  used  for 
any  other  train  or  station  than  that  named  therein,  the 
passenger  is  not  entitled  to  travel  beyond  that  station, 
and  merely  pay  the  ordinary  single  fare  for  the  dis- 
tance traveled,  but  he  must  pay  full  fare  for  the  entire 
distance  traveled.^ 

On  the  other  hand,  a  railroad  ticket  entitling  a  des- 
ignated person  to  a  stated  number  of  single  continuous 
trips,  for  each  of  which  a  separate  coupon  is  attached, 
"between"  two  specified  stations,  and  stipulating  that 
"passage  shall  be  taken  onh'  on  such  trains  as  stop  at 
the  above-named  stations,"  and  also  that  "this  ticket 
shall  be  good  for  continuous  trips"  between  these  sta- 
tions, confers  upon  that  person,  upon  surrendering  one 
of  the  coupons,  the  right  to  ride  from  an  intermediate 
station  to  either  of  the  two  stations  mentioned  in  the 
ticket,  or  from  either  of  those  stations  to  the  intermedi- 
ate station,  provided  he  boards  a  passenger  train 
which,  upon  its  regular  schedule,  stops,  not  only  at  the 
specified  stations,  but  at  the  intermediate  station  also. 
Although  entitled  to  ride  the  whole  distance,  the  pas- 
senger could  w£\ive  or  relinquish  this  right  in  part,  and 
accept  only  a  portion  of  the  ride  his  coupon  called  for/ 

3  Great  Northern  Ry.  Co.  v.  Palmer,  15  Reports.  29G.  One  who  pur- 
chases a  street-ear  ticket  "jiootl  only  between"  two  specified  strtets 
may  board  a  ear  at  a  place  remote  from  tlie  starting  point  named  in 
the  ticket,  pay  his  fare  to  that  point,  and  tlien  ride  on  the  ticket  to  the 
destination  named  therein.  Mc.Mnlion  v.  Railroad  Co.,  47  N.  Y.  Super. 
Ct.  2S2. 

4  Georgia  Railroad  &  Banking  Co.  v.  Clarke  (Ga.)  25  S.  E.  3GS.  See. 
als«,  ante,  §  272. 

(722) 


Ch.  22)  TICKETS.  §  2S2 

'       §  281.     RIDING  IN  REVERSE  DIRECTION  FROM 
THAT  INDICATED  ON  TICKET. 

A  passenger  cannot  ride  in  tlie  reverse  direction  from 
that  indicated  on  liis  ticket/  It  is  certainly  a  reason- 
able  requirement  that  a  passenger,  having  the  oppor- 
tunity, should  purchase  his  ticket  to  the  place  of  his 
destination,  and  not  in  the  opposite  direction.  To  ccmu- 
pel  railroad  companies  to  receive  unused  tickets,  with- 
out regard  to  the  direction  in  which  the  holder  wishes 
to  go,  would  introduce  inextricable  confusion  into  their 
business,  and  be  of  no  benefit  to  any  person  possessed 
of  sufficient  intelligence  to  go  upon  a  train."  But  a 
passenger  who  has  purchased  a  round-trip  ticket  has 
the  right  to  be  carried,  on  his  return  trip,  on  presenting 
the  going  coupon,  with  the  explanation  that  the  con- 
ductor on  the  going  trip,  by  mistake,  retained  the  re- 
turn-trip coupon,  and  returned  the  going  coupon  to  the 
passenger,  who  failed  to  discover  the  mistake  until  pre- 
senting it  to  the  conductor  on  the  return  trip.' 

§  282.     ASSIGNABILITY  OF  TICKET. 

In  the  absence  of  any  restriction  in  a  passage  ticket, 
it  is  assignable,  and  passes  from  hand  to  hand  by  de- 
livery.^     It  may  be  used  b}'  a  person  other  than  the 

§  281.    1  Coleman  v.  Railroad  Co.,  106  Mass.  KiO;  Keeley  v.  Railroad 
Co.,  67  Me.  163. 

2  Godfrey  v.  Railway  Co.,  116  Ind.  30.  IS  N.  E.  61. 

3  IVnnsylvania  Co.  v.  Bray,  125  Iiid.  22;».  2.")  X.   K.  VAU;    Lake  Eri." 
&  W.  Ry.  Co.  V.  Fix,  SS  Ind.  .381. 

§  282.     1  Spencer  v.  Lovejoy.  IXi  (Ja.  cr.S,  2.3  S.  K.  8:'.i;;    Tiie  Willa- 
mette Valley,  71  Fed.  712.     Mills'  Ann.  St.  Colo.  p.  1986,  S  372S.  pro- 

(72;]) 


§  282  CARRIERS  OF  PASSENGERS.  (Ch.  22 

one  named  in  the  ticket,  though  sokl  at  a  reduced  rate.- 
A  coupon  ticket  over  several  lines,  not  limited  on  its 
face  as  to  ownership  and  continuity  of  passage,  is  trans- 
ferable after  it  has  been  used  over  some  of  the  connect- 
ing lines.^  Eailroad  tickets  do  not,  however,  possess 
any  of  the  qualities  of  negotiable  paper.  The  holder 
of  such  a  ticket  is  in  no  better  position  than  the  bona 
fide  purchaser,  for  value,  of  goods  from  one  in  posses- 
sion, without  notice  of  any  defect  in  his  vendor's  title. 
Hence,  where  the  possession  of  such  a  ticket  has  been 
obtained  from  the  company  by  fraud,  a  purchaser  from 
the  holder,  though  for  value  and  without  notice  of  equi- 
ties, takes  no  better  title  than  the  person  who  fraudu- 
lently obtained  possession.* 

But  a  condition  in  a  ticket  sold  at  a  reduced  fare, 
that  it  can  be  used  only  by  the  purchaser,  is  reasonable 
and  valid;  and  a  third  person  cannot,  by  purchasing- 
such  a  ticket,  acquire  the  right  to  travel  thereon ;  and, 
if  he  refuses  to  -paj  his  fare,  he  may  be  expelled  from 
the  train."      And  a  condition  in  a  mileage  ticket  that  it 

Tides  that  railroad  ticl^ets  slaall  be  assignable  by  deliverj-,  and  tliat 
tickets  may  be  limited  as  to  time,  but  not  as  to  person. 

2  Nichols  V.  Southern  Pac.  Co.,  23  Or.  123,  31  Pac.  296;  Hoffman  v. 
Eailroad  Co.,  45  Minn.  53,  47  N.  W.  312;  Carsten  v.  Railroad  Co.,  44 
Minn.  454,  47  N.  W.  49. 

3  Mchols  V.  Southern  Pac.  Co.,  23  Or.  123,  31  Pac.  296. 

4  Frank  v.  Ingalls,  41  Ohio  St.  5G0. 

5  Post  V.  Railroad  Co.,  14  Neb.  110,  15  N.  W.  225;  Drummond  v. 
Southern  Pac.  Co.,  7  Utah,  118,  25  Pac.  733.  One  who  claims  the  right 
to  travel  on  a  1,000-mile  commutation  ticket  as  a  member  of  the  firm 
to  whom  it  was  issued,  but  who  has  not  signed  the  conditions  on  the 
back  thereof,  must  establish  the  existence  of  the  partnership  to  whom 
the  ticket  was  issued,  and  the  fact  that  he  was  a  member  thereof,  be- 
fore he  can  hold  the  company  liable  for  a  conductor's  refusal  to  permit 

(724) 


Ch.  22)  TICKETS.  §  28a 

shall  not  be  good  in  tlie  liauds  of  auy  pcrsou  utlu-r  iliau 
the  original  pnrchaser  is  not  waived  by  the  failure  of 
the  purchaser  to  sign  the  ticket."  So,  a  railroad  com- 
pany which  sells  a  ticket  good  over  the  lines  of  several 
connecting  railroads  has  no  power,  so  far  as  the  con- 
necting roads  are  concerned,  to  waive  a  condition  re- 
stricting its  use  to  the  first  purchaser;  and  one  of  the 
connecting  roads  is  not  bound  to  honor  the  ticket  in  the 
hands  of  one  who,  with  knowledge  of  the  condition, 
purchased  it  from  a  "scalper,"  though  it  had  been  pla- 
ced in  the  hands  of  the  scalper  for  sale  by  the  first  car- 
rier.^ 

§  283.     FORFEITURE  OF    TICKET. 

A  ticket  conditioned  to  be  void  if  presented  by  any 
person  other  than  the  original  holder  may  be  taken  up 
by  the  conductor  on  its  presentation  by  a  purchaser 
from  a  ticket  broker,  and  the  refusal  to  return  the  tick- 
et to  the  purchaser  cannot  result  in  damages  to  him.' 

him  to  ride  on  the  ticket.  Granier  v.  Railroad  Co.,  42  La.  xVmi.  880,  S 
South.  614.  A  raih'oad  ticket  which  on  its  face  pmports  to  be  ffood  for 
a  man  and  his  family  authorizes  a  son,  who  is  resiain;^-  with  the  father 
as  a  member  of  his  family,  to  ride  upon  the  road,  though  he  was  over 
21  years  of  age.  Schedules  furnished  the  public  are  not  admissible  to 
show  tliat  adult  sons  are  not  entitled  to  ride  on  the  ticket,  but  it  must 
appear  that  notice  of  the  regulation  was  given  the  purchaser  wheu  he 
bought  the  ticlcet.     Chicago  &  N.  W.  Ry.  Co.  v.  Chisholm,  70  111.  384. 

6  Raliilly  V.  Railway  Co.  (Minn.)  (iS  N.  W.  8.j3. 

7  roau-r  V.  Foley  i('.:\.)  2~^  S.  E.  071. 

§  283.  1  DruimiKiiid  v.  Soutlicrn  Pac.  Co.,  7  Utah.  118,  25  Tac.  7:'..".. 
Bvit  in  I'o.st  V.  Rnili'oad  Co.,  14  Neb.  110,  15  N.  W.  22.5,  it  was  held 
that,  where  a  nontiansferable  ticket  authorizes  the  comi)any  to  "refuse 
to  accept  this  ticket"  on  failure  of  the  pun-h;iscr  1o  comply  wiili  its 
terms,  the  conductor  has  no  right  to  take  it  up  when  presented  liy  a 
person  other  than  the  one  to  whom  Issued.     And,  tliough  smh  ii.rson 

(725) 


§  283  CARRIERS  OF  PASSENGERS.  (Ch.  22 

So,  a  ticket  containing  a  condition  of  forfeiture  if  used 
by  any  person  other  than  the  one  to  whom  issued  may 
be  taken  from  him  when  tendered  in  payment  of  fare,  if 
it  was  used  by  any  other  person,  either  witli  his  conniv- 
ance or  through  liis  negligence.  "From  the  character 
of  the  ticket,  and  its  liability  to  be  used  by  another,  in 
fraud  of  the  agreement  that  it  is  to  be  used  only  by  the 
person  to  whom  issued,  the  implied  obligation  rested 
on  him,  when  he  accepted  it  from  the  company,  to  keep 
it  with  due  and  proper  care.  If,  from  his  negligence, 
it  came  into  the  hand  of  another,  and  was  fraudulently 
used  on  the  company's  road,  he  is  just  as  amenable  to 
its  forfeiture  as  if  it  had  been  used  with  his  assent."  - 
So,  a  pass  issued  to  a  person  on  the  false  representation 
that  he  is  in  the  employ  of  a  newspaper,  made  by  the 
editor  of  the  paper,  may  be  taken  up  and  forfeited  by 
the  company  on  discovering  the  fraud,  if  the  person  to 
whom  the  pass  was  isssued  was  a  privy  to  the  fraud. ^ 

has  no  right  to  travel  on  the  ticket,  yet  he  may  recover  the  vahie 
of  a  ticket  of  the  same  class  between  the  points  named  if  it  is  taken  np 
by  the  conductor.  This  decision  is  vicious  in  the  extreme.  The  ticket, 
after  its  transfer,  in  violation  of  its  conditions,  was  of  no  value,  either 
in  the  hands  of,  the  transferee  or  of  the  oi-iginal  holder,  or  in  the  hands 
of  any  other  person.  To  permit  the  holder  to  recover  its  full  value 
under  these  circumstances  is  so  glaringly  unjust  as  not  to  require  any 
further  comment. 

2  Freidenrich  v.  Railroad  Co.,  53  Md.  201. 

3  Moore  v.  Railroad  Co.,  41  W.  Ya.  IGO,  2.3  S.  E.  539.  Where  a  stock 
pass  is  issued  to  a  woman  on  a  fraudulent  representation  that  she  is 
part  owner  of  the  stock,  the  conductor  has  the  riglit  to  refuse  to  honor 
it;  and  the  company  is  not  liable  for  liis  act  in  handing  her  from  the 
train  without  incivility  or  violence;  whereupon  her  fare  was  paid  by 
her  husband,  who  was  on  the  train,  and  she  re-entered  the  train,  and 
proceeded  on  her  journey.     Brown  v.  Railway,  64  Mo.  536. 

(T2G) 


Ch.   22)  TICKETS.  S    2^\ 


g  2Si.     PROVISION    FOR    IDENTIFICATION    OF    PUR- 
CHASER. 

A  coudition  in  a  roiiiul-trip  exclusion  tii  kot,  sold  at 
a  reduced  rate,  requiring  the  pnrcluiser  to  identify  him- 
self to  the  ticlvet  agent  at  destination,  and  the  return 
coupon  to  be  stamped  and  dated  by  such  agent,  is  rea- 
sonable and  valid/  Such  a  condition  is  intended  to 
prevent  tickets  from  passing  into  the  hands  of  third 
persons,  and  being- used  by  them  in  making  portions  of 
the  transit,  where  higher  rates  of  fare  are  required  than 
the  special  rates  which  the  companies  are  able  to  make 
to  through  passengers  traveling  a  long  distance.^  The 
purchaser  of  such  a  ticket  is  bound  by  the  condition, 
whether  he  knows  of  it  or  not.'  So.  where  the  condi 
tion  is  that  the  purchaser  shall  identify  himself  to  the 
"satisfaction"  of  the  agent  at  destination,  the  agent  is 
the  one  who  must  determine  the  suiticiency  of  the  iden- 
titication;  and  the  question  cannot  be  submitted  to  the 
jury  whether  he  ought  to  have  been  satisfied.*      And  a 

§  284.  1  Edwards  v.  Railway  Co.,  81  Mich.  304,  45  N.  W.  827;  (^al- 
leua  V.  Railroad,  13  Fed.  116;  Bethea  v.  Railroad  Co.,  2G  S.  C.  91,  1  S. 
E.  372;  Bowers  v.  Railroad,  158  Pa.  St.  302,  27  Atl.  893;  Gootz  v. 
Railroad  Co.,  50  Mo.  472. 

2  Cloud  V.  Railway  Co.,  14  Mo.  App.  130. 

3  Boylan  v.  Railroad  Co.,  132  V.  S.  140.  lu  Sup.  Ct.  50;  Moses  v. 
Railroad,  73  Ga.  3.J0.  But  iu  riiillii>s  v.  Railroad  Co.,  93  Ga.  356,  20 
S.  E.  247,  it  was  hold  that  under  Code  Ga.  §  2008.  whidi  provides  that 
a  common  carrier  cannot  limit  his  liability  by  any  notice  or  entry  on 
the  ticket  sold,  but  must  do  so  by  express  ojntract,  sudi  a  condition  for 
id.'iitificatiou  is  not  bindin-  on  the  purchaser,  if  he  liad  no  linuwlcdj,'c 
of  its  existence  wlicn  he  purcluiscd. 

4  Bethea  v.  Railroad  Co.,  20  S.  C.  91,  1  S.  E.  372.  The  court  said: 
"That  officer  was  not  indicated  an  'agent'  for  the  purpose  of  perform- 

(727) 


§  284  CARRIERS  OF  PASSENGERS.  (Cll.  22 

purchaser  of  siicli  a  ticket,  who  has  neglected  to  identi- 
fy himself  to  the  agent,  has  no  right  to  identify  himself 
to  the  conductor  at  the  time  of  his  expulsion  from  the 
train  for  noncompliance  with  the  condition.  The  safer 
rule  is  to  abide  by  the  contract  as  it  is  written,  as  to  the 
time  and  manner  of  identification,  and  not  open  the 
door  for  other  methods.^ 

Considerable  conflict  in  the  authorities  exists  where 
the  ticket  requiring  identification  at  the  terminal  point 
is  good  over  the  lines  of  several  connecting  carriers, 
and  the  agent  at  the  terminal  point  wrongfully  neg- 
lects or  refuses  to  stamp  the  ticket.  The  supreme  court 
of  South  Carolina  has  held  that  a  coupon  ticket,  good 
over  several  connecting  lines,  which  expressly  states 

ing  a  merely  miuisterial  act;  but,  on  the  contrary,  it  was  made  bis 
duty  to  judge  of  the  sutticiency  of  tlie  evidence  of  idenlitication;  not 
Avliether  the  plaintiff  had  reasonably  identified  himself  by  handwriting 
or  otherwise,  but  wiietlier  he  was  identified  to  the  satisfaction  of  the 
person  named.  That  otficer  may  have  been  unnecessarily  hard  to 
satisfy,  but  that  was  the  test  required  by  the  contract  itself." 

5  Abram  v.  Railway  Co.,  83  Tex.  Gl,  18  S.  W.  321.  But,  under  a 
condition  in  a  mileage  ticket  that,  wlien  requested  by  the  conductor, 
the  purchaser  will  sign  liis  nani^  in  the  presence  of  tlie  conductor,  on 
tlie  back  of  one  of  tlie  coupons,  and  "otherwise  identify  himself"  as 
the  purchaser,  the  conductor  lias  no  right  to  arbitrarily  refuse  the 
holder  of  the  ticket  permission  to  sign  his  name  for  the  purpose  of 
identification,  and  to  require  him  to  adduce  other  evidence  of  identity, 
though  it  may  be  otherwise  where  the  passenger  is  permitted  to  sign 
his  name,  and  the  conductor  is  left  in  doubt  as  to  identity.  Norfolk  & 
W.  R.  Co.  V.  Anderson,  90  Va.  1,  17  S.  E.  757.  Where  a  round-trip 
ticket  from  a  station  In  South  Carolina  to  New  Orleans  requires  the 
purcliaser  to  present  the  ticket  for  stamping,  and  to  identify  himself. 
at  Baltimore,  the  word  "Baltimore"  will  be  considered  as  a  misprint 
for  New  Orleans,  and  the  conti'act  requiring  stamping  and  identifica- 
tion for  the  return  trip  is  not  thereby  invalidated.  Betliea  v.  Railroad 
Co.,  2r,  S.  C.  91,  1  S.  E.  372. 

(728) 


Ch.  22)  TICKETS.  §  '284 

that  the  selling  company  acts  as  agent  for  the  other 
companies,  "and  is  not  responsible  beyond  its  own 
line,"  relieves  the  selling  company  from  liability  for  the 
<lefanlts  of  the  connecting  lines;  and,  where  the  ticket 
further  requires  the  holder  to  present  it  at  the  terminal 
point  to  the  agent  of  the  terminal  line  for  restampiug 
and  for  identitication,  the  agent  is  thereby  made  the 
agent  of  all  the  companies,  and  the  selling  company  is 
not  liable  for  the  refusal  of  the  other  companies  to  car- 
ry the  holder  on  the  return  trip  because  of  such  agent's 
wrongful  refusal  to  stamp  the  ticket.''  The  United 
States  supreme  court  has  gone  still  further,  and  has 
held  that  even  the  first  carrier  is  not  bound  to  honor 
such  a  ticket  on  the  return  trip,  where  the  purchase:- 
has  failed  to  comply  with  the  provisions  for  identifica- 
tion and  stamping,  though  such  failure  was  due  to  the 
default  of  the  ticket  agent  of  the  last  carrier  at  the  ter- 
minal point.  That  default  was  the  default  of  the  agent 
of  the  last  line,  for  which  the  first  carrier  is  not  respon- 
sible, under  the  stipulation  that  its  liability  is  limited 
to  its  own  line.'  On  the  other  hand,  it  has  been  re- 
cently held,  with  a  great  deal  of  reason,  that  by  selling 
a  round-trip  ticket,  good  over  two  connecting  lines  of 
railroad,  containing  a  condition  requiring  the  passen- 
ger to  identify  himself  to  the  ticket  agent  of  the  con- 


fe 


necting  line  at  destination,  and  requiring  that  agent  to 
stamp  the  ticket,  the  first  carrier  makes  that  agent  its 
own  special  agent  for  the  purpose  of  identification  and 

c  Bethea  v.  Railroatl  Co..  20  S.  C.  91.  1  S.  E.  372. 

T  Mosher  v.  Railroad  Co..  TJ7  V.  S.  ;W0,  S  Sup.  Ct.  i:V24,  Mffiniiiii;,' 
2.";  Fed.  :V2C).  17  Fed.  880.  tblknvi'd  iu  Coutral  Tiust  Co.  v.  lOast  Tcn- 
mssee,  V.  &  G.  K.  Co.,  (Jo  Fed.  332. 

(72!)) 


§  2S4  CARRIERS  OF  PASSENGERS.  (01).  22 

stamping;  aud  where  he  refuses  to  stamp  the  ticket, 
saying  that  it  is  all  right  without  stamping,  the  first 
carrier  is  liable  for  the  ejection  of  the  passenger  on  his 
return  trip  after  reaching  its  line,  and  is  not  relieved 
from  such  liability  by  a  condition  in  the  ticket  that  ^'it 
is  not  responsible  beyond  its  own  line."  ^ 

The  condition  for  identification  may  be  waived  by  the 
subsequent  conduct  of  the  parties.^  But  such  condi- 
tion is  not  waived  by  the  fact  that  a  gateman  permit- 
ted the  passenger  to  pass  through  the  gate  without  ex- 
amining or  punching  the  ticket,  and  that  the  conductor 
of  the  sleeping  car  failed  to  notice  that  the  ticket  was 
unstamped.'''  So,  the  voluntary  act  of  the  conductor 
of  one  of  several  connecting  lines  of  railway  in  honor- 
ing the  ticket  is  not  binding  on  any  of  the  succeeding 
carriers,  and  any  one  of  them  may  object  to  the  passen- 
o-er's  failure  to  have  himself  identified  at  destination, 
as  required  by  the  terms  of  the  ticket. ^^ 

8  Gulf,  C.  &  S.  F.  R.  Co.  V.  St.  John  (Tex.  Civ.  App.)  35  is.  VV.  501; 
Head  v.  Railway  Co.,   79  Ga.  358,  7  S,  E.  217. 

9  Taylor  v.  Railroad  Co.,  99  N.  C.  185,  5  S.  E.  750.  In  this  case  it 
was  held  that,  to  show  such  a  waiver,  it  is  competent  to  prove  that 
an  agent  of  the  carrier,  other  than  at  the  station  designated  in  the 
contract,  recognized  the  ticket  by  permitting  the  passenger  to  identify 
himself,  and  by  stamping  it  for  the  return  trip. 

10  Bowers  v.  Railroad,  158  Pa.  St.  302,  27  Atl.  893.  Nor  is  such 
condition  waived  by  the  action  of  the  baggage  man  in  punching  the 
ticket,  and  checking  the  passenger's  baggage,  nor  that  of  the  gateman 
in  admitting  him  to  the  train.  Boylan  v.  Railroad  Co.,  132  U.  S.  140, 
10  Sup.  Ct.  50. 

11  Cloud  V,  Railway  Co.,  14  Mo.  App.  136. 

(730) 


Ch.  22)  TICKETS.  §  28-5 


§  285.     LIMITATION  AS  TO  TIME. 

Tn  the  absence  of  any  limitation  as  to  the  time  within 
which  a  ticket  is  to  be  used  by  the  purchaser,  it  is  un- 
doubtedly good  for  a  passage  at  any  time  within  the 
statutory  period  of  limitation  as  to  contracts.^  It 
seems  at  first  to  have  been  doubted  whether  it  was  com- 
petent for  a  passenger  carrier  to  enter  into  a  contract 
limiting  the  time  within  which  the  holder  of  a  ticket 
should  ayail  himself  of  the  right  to  use  it.  But  it  is 
now  definitely  settled  that  a  stipulation  in  a  ticket  lim- 
iting the  time  within  which  it  shall  be  used  is  valid  and 
binding  on  the  purchaser.-  Thus,  a  dated  single-trip 
ticket,  which  states  that  it  is  "good  for  this  dav  oulv,-' 
cannot  be  used  on  a  day  subsequent  to  its  purchase." 

§  285.  1  Pennsylvauia  R.  Co.  v.'Spicker,  105  Pa.  St.  142.  A  some- 
what different  ruling  seems  to  Lave  been  made  in  Canada.  In  an 
action  for  the  ejection  of  a  passenger,  it  appeareil  that  he  presented  a 
ticket  which  must  have  been  sold  16  months  before,  and  which  the 
conductor  refused  to  accept  on  that  ground.  It  also  appeared  thai 
on  other  occasions  plaintiff  had  presented  an  old  ticket,  and,  on  its 
being  rejected,  had  paid  fare.  Held  that,  the  circumstances  being 
susi)icious,  the  mere  production  of  the  ticket  was  not  sufficient  to  entitle 
plaintiff  to  recover,  but  that  it  should  have  been  left  to  the  jury  to  say 
whether  plaintiff  had  procured  it  fairly,  or  was  attempting  an  impo- 
sition.    Davis  V.  Railway  Co.,  20  U.  C.  Q.  B.  27. 

2  Little  Rock  &  F.  S.  Ry.  v.  Dean,  43  Ark.  529;  Hill  v.  Railroad 
Co.,  63  N.  Y.  101,  affirming  2  Hun  (N.  Y.)  114,  4  Thomp.  &  C.  (N.  Y.) 
685;  Barker  v.  Coflin,  31  Barb.  (N.  Y.)  556;  Farewell  v.  Railway  Co., 
15  U.  C.  C.  P.  437;  Grogan  v.  Railway  Co.,  39  W.  Va.  415,  19  S.  E.  563. 

3  Elmore  v.  Sands,  54  N.  Y.  512;  State  v.  Campbell,  32  N.  J.  Law. 
.300;  Shedd  v.  Railroad  Co.,  40  Yt.  88;  Boice  v.  Railroad  Co.,  61  \\\\\h. 
(N.  Y.)  611.  A  railroad  passenger  ticket,  which  is  dated,  and  licars 
upon  its  face  a  printed  statement,  "Good  only  two  days  after  date," 
ceases  to  be  valid  after  the  expiration  of  the  two  days.     Boston  &  L. 

(731) 


§  285  CARRIERS  OF  PASSENGERS.  (Ch.  22 

So,  a  stipulation  in  a  ronnd-trip  ticket,  good  for  30  days, 
that  the  purchaser  shall  have  himself  identified  at  the 
terminal  point  of  his  journey,  and  that  the  ticket  shall 
be  good  only  for  15  days  after  the  date  of  identification, 
is  not  illegal  or  unreasonable;  and  the  passenger  can- 
not travel  on  the  ticket  after  the  expiration  of  the  15 
days  from  the  identification,  though  the  30-day  limit 
has  not  expired.*  So,  a  condition  on  the  return  coupon 
of  a  round-trip  excursion  ticket  that  it  is  good  only  one 
day  from  the  date  of  sale,  unless  it  is  extended  by  the 
agent  at  destination,  is  valid. ^  So,  the  holder  of  a  mile- 
age ticket,  or  a  commutation  ticket  good  for  a  certain 
number  of  rides,  which  by  its  terms  is  limited  to  a  speci- 
fied time  from  its  date,  has  no  right  to  travel  thereon 
after  the  expiration  of  the  stipulated  period,  though  a 
portion  of  the  ticket  remains  unused.® 

R.  Co.  V.  Prootor,  1  Allen  (Mass.)  267.  A  passenger  who  knows  that 
a  railroad  company  is  in  the  habit  of  selling  tickets  limited  as  to  time 
is  bound  to  know  the  time  limit  stamped  on  the  back  of  a  ticket  pur- 
chased by  him;  and,  where  the  ticket  is  limited  to  expire  on  the  day  of 
sale,  he  cannot  ride  on  it  after  carrying  it  around  in  his  pocket  for 
several  days  without  using  it.  McCxhee  v.  Drisdale,  111  Ala.  597,  20 
South.  391.  But  the  words  "Good  for  this  trip  only."  upon  a  passage 
ticket,  will  not  limit  tlie  undertaking  of  the  company  to  any  particular 
day.  or  any  specific  train  of  cars.  They  do  not  relate  to  time,  but  to  a 
journey;  and.  if  the  ticket  has  not  been  previously  used,  it  entitles 
the  holder  to  a  passage  on  a  subsequent  day,  as  w^ell  as  on  the  day  it 
bears  date.     Pier  v.  Finch,  24  Barb.  (N.  Y.)  514. 

4  Rawitzky  v.  Railroad  Co.,  40  La.  Ann.  47,  3  South.  387. 

e  Missouri,  K.  &  T.  Ry.  Co.  v.  Murphy  (Tex.  Civ.  App.)  35  S.  W.  66. 

«  Lillis  v.  Railway  Co.,  04  Mo.  404;  Powell  v.  Railroad  Co.,  25  Ohio 
St.  70. 

(732) 


Ch.  22j  TICKETS.  §  28G 


§  286.     SAME— LIMITATION    BY   REGULATION  NOT 
EXPRESSED  IN  TICKET. 

Tliere  is  a  conflict  in  tlie  authorities  as  to  whether  a 
carrier  can  fix  a  time  limit  by  a  rej>ulation  not  ex- 
pressed in  the  ticlvet,  as  against  a  passenger  who  has  no 
knowledge  of  the  regulation.  In  Pennsylvania  it  has 
been  held  that  such  a  regulation  is  not  valid  as  against 
a  passenger  who  did  not  know  of  it,  and  that  he  is  not 
bound  to  make  inquiries  about  such  a  regulation  of  the 
company  which  does  not  appear  in  the  ticket,^  But  in 
Xew  Hampshire  it  has  been  held  to  be  the  passenger's 
duty  to  make  inquiry  as  to  all  reasonable  regulations  of 
the  carrier  when  he  purchases  his  ticket,  and  that  he  is 
bound  by  a  regulation  limiting  the  time  within  which 
a  ticket  must  be  used,  though  he  knew  nothing  about 
it,  and  though  his  ticket  was  unlimited  on  its  face."     It 

§  280.    1  Pennsylvania  R.  Co.  v.  Spicker,  105  Pa.  St.  142. 

2  Johnson  v.  Railroad  Corp.,  46  N.  H.  213.  In  this  case  it  was  said: 
♦'It  might  be  suggested  that  in  a  case  like  the  present  it  would  be 
quite  practicable  to  indorse  some  notice  of  the  change  of  rule  on  tlie 
Tii'ket:  but  when  we  take  into  account  the  number  of  clianges  of 
different  regulations,  important  to  travelers,  that  may  become  essen- 
tial to  convenient  and  safe  transportation,  and  the  fre(iueiicy  of  tlieir 
necessity,  we  tliink  it  can  hardly  be  practicable  to  place  notices  of  all 
such  changes  upon  the  ticket;  and,  if  it  were,  it  would  Ik-  far  from 
insuring  actual  notice  to  all  passengers.  It  seems  to  us  tliat  sucli  a  lo- 
'luirement  would  not  prove  of  sufficient  practical  value  to  counterbal- 
ance its  inconveniences.  If  it  is  understood  by  ihe  pubVc  ih  it  the  d  ly 
is  on  tlie  traveler  to  inquire  as  to  all  sucli  reasou.ible  rcgulalions  as  it 
may  be  important  for  him  to  know,  we  tliink  tliat  tlicr*'  will  resiili 
less  inconvenience  than  from  any  holding  of  ihc  law  iliat  tends  to  re- 
lieve tlic  traveler  from  the  duty  of  iiKiiiiriiig  as  to  a  part  of  sucli 
matters  of  regidation." 


§  287  CARRIERS  OF  PASSENGERS.  (Ch.  22 

would  seem  that  the  Penns^ivania  decision  is  right  in 
principle,  because  a  passenger  has  a  right  to  presume 
that  a  ticket  unlimited  as  to  time  is  good  whenever 
used,  and  it  is  no  great  hardship  to  require  railroad 
companies  to  express  such  a  limitation  of  the  common 
law  on  the  ticket. 

§  287.     SAME— LIMITATION    MUST  BE    REASONABLE. 

The  time  limited  on  a  railroad  ticket  within  which  a 
trip  must  be  completed  must,  in  order  to  be  binding, 
allow  sufficient  time  for  a  person  using  ordinary  dili- 
gence to  accomplish  the  trip.^  The  carrier  must  af- 
ford a  purchaser  of  a  limited  ticket  the  necessary  facili- 
ties for  accomplishing  his  journey  within  the  stipulat- 
ed time,  and,  upon  the  failure  to  do  so,  he  is  not  in  posi- 
tion to  treat  the  contract  of  carriage  as  forfeited,  and 
demand  a  second  payment  of  fare  for  the  same  passage, 
at  least  if  the  ticket  holder  avail  himself  of  the  first  op- 
portunity to  complete  the  journey  after  the  expiration 
of  the  time  limited.^  Thus,  where  a  carrier  induces  a 
number  of  passengers  to  go  on  an  excursion  for  a  speci- 

§  287.  1  Gulf,  C.  &  S.  F.  R.  Co.  v.  AVright  (Tex.  Civ.  App.)  30  S.  W. 
294.  When  a  railway  undertakes  to  sell  an  excursion  ticket,  to  be 
used  witliin  a  certain  time,  it  must  see  tliat  tlie  time  agreed  upon  is 
reasonable,  from  tlie  standpoint  of  the  then  existing  circumstances 
and  conditions,  and  that  the  passenger,  by  the  exercise  of  reasonable 
diligence,  may  complete  the  journey  within  the  time  agreed  upon.  If 
sucli  time  be  reasonable,  the  railway  company  selling  such  ticket,  witli 
liability  limited  to  its  own  line,  would  not  be  liable  for  delays  by  other 
lines  on  the  route,  and  could  insist  on  the  terms  of  the  ticket  when 
presented  after  the  time  specified  therein.  Id..  2  Tex.  Civ.  App.  4G3, 
21  S.  W.  399. 

2  Little  Rock  &  F.  S.  Ry.  v.  Dean,  43  Ark.  o29. 

(734) 


<Jh.  22)  TicKKTS.  §  288 

lied  purpose, — as,  for  example,  to  attend  a  public  auc- 
tion of  town  lots, — it  should  allow  them  a  reasonable 
time  in  which  to  accomplish  the  purpose  of  the  journey; 
and,  in  the  absence  of  knowledi;e  to  the  contrary  on  the 
part  of  the  passenger,  he  has  a  right  to  infer  that  the 
limitation  contained  in  ^he  ticket  will  do  this.-  The 
supreme  court  of  Texas  has  said  that  a  through  ticket, 
good  over  several  conuec-tinii  lines,  not  in  the  form  of  a 
coupon  ticket,  is  a  joint  undertaking  on  the  part  of  all 
the  roads;  and  the  last  carrier  is  bound  to  honor  the 
ticket  after  the  time  limited  therein  has  expired,  when 
it  appears  that  plaintiff's  delay  was  owing  to  the  de- 
fault of  one  of  the  intermediate  carriers.  But  when 
the  ticket  is  in  the  form  of  coupons,  and  expressly  states 
that  the  selling  company  acts  only  as  agent,  and  is  not 
responsible  beyond  its  own  line,  each  coupon  becomes 
the  separate  contract  for  the  line  for  which  issued;  and, 
if  the  last  coupon  is  not  presented  by  the  passenger 
within  the  time  limited,  the  last  company  is  not  bound 
to  carry  him,  though  his  delay  Avas  caused  solely  by  a 
wreck  on  an  intermediate  road,  and  though  he  exer- 
cised all  possible  diligence  in  prosecuting  the  journey. 
His  only  remedy  would  be  against  the  carrier  causing 
the  delay.* 

§  288.     SAME— CONSTRUCTION  OF    LIMITATION. 

Where  a  railroad  ticket  is  conditioned  that  it  shall  be 
void  after  a  certain  time,  the  passenger  may  commence 
his  journey  at  any  time  before  midnight  of  the  last  day, 
and  need  not  complete  the  journey  within   the   time 

8  Texas  &  P.  Ky.  Co.  v.  Dennis,  4  Tex.  Civ.  App.  UO,  U;!  S.  W.  400. 
4  Gulf,  C.  &  S.  V.  Ky.  Co.  V.  lA)ouey,  85  Tex.  lo8.  19  S.  W.  lo.".;). 

(7:5.-.) 


§  288  CARKIERS  OF  PASSENGERS.  (Ch.  22 

mentioned.^  The  language  printed  on  the  ticket  must 
be  regarded  as  the  language  of  the  carrier;  and,  if  it  is 
of  doubtful  import,  the  doubt  should  not  be  solved  to 
the  detriment  of  the  passenger.  If  it  had  been  intend- 
ed by  the  carrier  that  the  journey  should  have  been 
completed  on  or  before  the  last  day  limited,  such  limi- 
tation should  have  been  plainly  expressed,  and  not  be 
left  in  such  doubt  as  might  and  naturally  would  mis- 
lead passengers.-  Besides,  the  contract  should  be  so 
construed  as  to  prevent  a  forfeiture  if  it  can  be  done.^ 
Where  the  time  limit  fixed  by  a  round-trip  ticket  ex- 
pires on  a  Sunday,  and  the  carrier  does  not  run  a  train 
on  that  day,  the  passenger  has  a  right  to  commence  his 
return  trip  on  the  first  train  of  the  f  (dlowing  day,  under 
the  rule  that,  if  a  contract  matures  on  a  Sunday,  the 
performance  is  to  be  exacted  on  the  next  day.*  So,  the 
fact  that  a  ticket  bears  a  date  several  days  prior  to  the 
date  of  sale  does  not  deprive  the  purchaser  of  the  right 
to  travel  on  it  the  day  it  is  sold,  under  its  provision  that 
it  is  good  "within  one  day  of  date  of  sale.''  ^ 

§  288.  1  Liindy  v.  Railroad  Co.,  66  Cal.  191.  4  Pac.  1193:  Geovsia  S. 
R.  Co.  V.  Bigelow,  68  Ga.  219;  Evans  v.  Railway  Co..  11  Mo.  App.  463; 
Briggs  V.  Railway  Co.,  24  U.  C.  Q.  B.  510.  A  railroad  ticket  containing 
the  stipulation  that  it  is  good  for  "a  continuous  passage  on  and  from 
the  date  stamped  on  the  back"  is  limited  to  use  upon  the  day  it  is 
dated,  and  such  further  time  as  is  necessaiy  to  complete  the  continuous 
passage.     Texas  &  N.  O.  R.  Co.  v.  Powell  (Tex.  Civ.  App.)  35  S.  W. 

841. 

2  Auerbach  v.  Railroad  Co.,  89  N.  Y.  281,  reversing  60  How.  Prac. 

(N.  Y.)  382. 

3  Evans  v.  Railway  Co.,  11  Mo.  App.  463;  Little  Rock  &  F.  S.  By. 
V.  Dean,  43  Ark.  529. 

4  Little  Rock  &  F.  S.  Ry.  v.  Dean,  43  Ark.  529. 
B  Ellsworth  V.  Railway  Co.  (Iowa)  63  N.  W.  584. 

(73G) 


Ch.  22)  TICKETS.  §  289 

But  a  passenger  whose  ticket  expires  at  miduijibt  has 
CO  right,  by  reason  of  the  purchase  of  such  a  ticket,  to 
take  a  train  which  starts  at  12:45  a.  m.  liut,  though 
he  is  improper!}^  on  the  train,  he  niav  show  that  he  was 
there  bv  mistake,  and  that  he  tendered  to  tlie  conductor 
the  ticket,  which,  under  the  statutes  of  the  state,  the 
company  was  obliged  to  redeem,  together  .vith  a  suffi- 
cient sum  of  money  to  make  the  full  fare.  And  such 
evidence  makes  the  question  whether  he  was  a  tres- 
passer, whom  the  company  had  the  right  to  eject,  one 
for  the  jury.® 

§  289.     SAME— WAIVER  OF  LIMITATION. 

Where  a  ticket  is  sold  at  less  than  the  usual  rates,  on 
the  condition  that  it  shall  not  be  used  after  a  time 
limited,  the  passenger,  by  accepting  and  using  the  tick- 
et, makes  a  contract  with  the  company  according  to  the 
terms  stated,  and  the  reduction  in  the  fare  is  the  con- 
sideration for  his  contract.  The  fact  that  the  agent  in- 
forms him  that  the  ticket  is  "good  until  used"  cannot 
vary  this  contract.  If  be  has  been  misled  or  misin- 
formed by  the  seller  as  to  the  terms,  he  has  a  right  to 
return  the  ticket,  and  receive  back  his  money.  The 
railroad  company  agrees  to  carry  liiui  at  tlic  reduced 
rate,  upon  the  conditions  stated  on  the  face  of  tin-  tick 
et.  If  he  agrees  to  those  terms,  the  contract  is  cousuui- 
mated ;  but  he  cannot  take  advantage  of  the  reduction 
of  the  rate,  and  reject  the  terms  on  which  alone  the  re- 
duction was  made.^      So,  where  an  (excursion  ticket 

oAiiKjltl  V.  I{;iilru:i(l  Co..  li:.  Vu.  81.  1:5.".,  S  All.  IJi:;. 
§  289.      1  renuiii;iton  v.  itailioad  Co.,  (52  Md.  'X>.     A  vcrl.al  d.cliir.i- 
tioii  of  a  ticket  asent,  mado  after  tlio  i)unliast'  of  a  lickci  limiicd  to 

V.  1  FICT.CAIi.l'AS. — 47  '7.37) 


§  289      .         CARRIERS  OF  PASSENGERS.  (Cll.  22 

states  that  it  may  be  exchanged  at  destination  for  a  re- 
turn ticket,  "good  for  the  day  and  train  designated  on 
the  face  of  such  exchange  ticli:et,"  the  passenger  can- 
not use  the  exchange  ticket  on  another  train  and  on  an- 
other day  than  that  indicated  thereon,  though  the  ad- 
vertisement for  the  excursion  stated  that  tickets  would 
be  good  to  return  for  five  days.-  But  it  has  been  held 
that,  though  a  ticket  is  stamped  as  "good  for  this  day 
only,"  the  purchaser  may  show  by  j^arol  that  he  asked 
for  a  ticket  on  which  he  could  stop  over  at  an  interme- 
diate station  for  a  day,  and  that  the  ticket  agent  repre- 
sented to  him  that  he  could  do  so  on  that  ticket.  The 
fact  that  the  ticket  agent  was  not  authorized  to  make 
such  a  contract  does  not  warrant  the  passenger's  expul- 
sion from  the  ti*ain,  without  returning  to  him  his  pro 
rata  share  of  the  fare.^ 

The  time  limit  in  a  railroad  ticket  is  not  waived  by 
the  act  of  the  baggage  master  in  checking  the  j)assen- 
ger's  baggage,  and  punching  the  ticket  on  its  presenta- 
tion to  him.  The  baggage  master's  apparent  author- 
ity extends  only  to  due  attention  to  the  passenger's  bag- 
gage, and  not  to  the  validity  of  his  ticket.*      Kor  does 

the  (late  of  its  issuance,  that  it  is  good  at  any  time,  is  not  a  conti-act 
varying  the  time  limit  expressed  in  tlie  ticlcet,  in  the  absence  of  any 
proof  that  the  agent  had  authority  to  malie  an  oral  contract  for  the 
company  varying  the  one  indicated  by  the  ticket.  Boice  v.  Railroad 
Co.,  Gl  Barb.  (X.  Y.)  Gil. 

2  Howard  v.  Railroad  Co.,  Gl  Miss.  194. 

3  Buruham  v.  Railway  Co..  Go  Me.  298.  A.  ticket  limited  to  the  day 
on  which  issued  cannot  be  used  on  ihe  following  day,  unless  the  pas- 
seng(n-,  on  ordering  his  ticket,  notified  the  ticket  agent  that  he  wanted 
a  different  one.     Lewis  v.  Railroad  Co.,  O:',  tJa.  22o,  IS  S.  E.  GoL). 

4  Wtntz  V.  Railway  Co.,  3  Hun  (X.  Y.i  241. 

(738) 


Ch.  22)  TICKET8.  §  290 

the  fact  that  a  mileage  ticket  was  used  by  a  passenger 
a  number  of  times  after  the  expiration  of  the  time  lim- 
ited therein  estop  the  company  from  taking  up  the  tick- 
et, and  requiring  the  payment  of  fare.^  Where,  how- 
ever, the  time  limit  on  a  round-trip  excui*sion  ticket  is 
extended  by  a  duly-authorized  ageut  of  the  company, 
the  conductor  of  the  train  has  no  right  to  refuse  the 
ticket,  and  expel  the  passeuger.® 

§  290.     SAME— MAINE  STATUTE. 

By  statute,  in  Maine,  a  railroad  ticket  is  made  bind- 
ing on  the  company  for  six  years  from  its  date,  and  con- 
fers on  the  holder  the  right  to  stop  off  at  usual  stopping 
places  during  that  period/  It  was  at  one  time  held 
that  this  statute  applied  to  a  ticket  sold  within  the 
state  for  a  passage  to  a  point  without.^  But  it  was 
subsequently  held  that  the  statute  applies  only  to  trans- 
portation within  the  territorial  limits  of  the  state;  that 
it  has  no  force  beyond  such  limits,  and  consequently 
does  not  apply  to  a  ticket  from  Tortland  to  Montreal, 
while  it  is  being  used  beyond  the  limits  of  the  state.^ 
In  a  still  later  case  it  was  held  that  the  statute  does 

5  Sheiman  v.  Railroad  Co.,  40  Iowa,  45.  lu  this  case  it  was  said: 
"The  ticket  itself  was  express  notice  to  plaintiff  and  the  conductors 
that  the  latter  liatl  no  right  to  accept  the  ticket  in  ])aynieut  of  fare, 
and  that  it  was  his  duty  to  pay  fare,  and  their  duty  to  take  up  the 
ticket  and  collect  the  fare.  Ili.s  wronj;ful  conduct  L'U  times  could  not 
make  his  twenty-first  effort  rightful.  The  esseiuial  elements  of  estop- 
pel, as  against  defendant,  are  all  wanting." 

0  Randall  v.  Railroad  Co.,  45  La.  Ann.  ITS.  13  South.  IGG. 

§  290.      1  Rev.  St.  c.  .")!.  §  44,  adopleil  in  iss;;. 

5i  Dryden  v.  Railway  ("u..  CO  .Me.  .")ll'. 

8  Carpenter  v.  Railway  Co.,  Tl!  Me.  :\SH. 


§  291  CARRIERS  OF  PASSENGERS.  (Ch.  22 

not  apply  to  a  ticket  piireliased  in  Canada  for  a  contin- 
uous passage,  on  a  particular  day,  on  a  railroad,  from 
that  country  through  portions  of  the  states  of  Vermont 
and  New  Hampshire,  into  jMaine.  Huch  an  application 
of  the  statute  would  work  an  interference  with  both 
foreign  and  interstate  commerce  in  the  carriage  of  pas- 
sengers, within  the  prohibition  of  the  federal  constitu- 
tion.* So  the  supreme  judicial  court  of  Massachusetts 
has  held  that  the  Maine  statute  applies  only  to  trans- 
portation within  the  limits  of  that  state,  and  does  not 
authorize  one  who  has  purchased  a  ticket  in  Maine,  for 
transportation  to  Massachusetts,  to  stop  over  at  will  at 
an  intermediate  station  in  Massachusetts.^ 

§  291.     CONTINUITY  OF  JOURNEY. 

In  the  absence  of  any  understanding,  or  of  rules  and 
regulations  to  modify  the  contract,  the  purchase  and 
sale  of  a  ticket  good  from  one  station  to  another  create 
an  obligation  on  the  part  of  the  carrier  to  carry  by  con- 
tinuous service  to  the  passenger's  destination.  The 
carrier  has  no  right  to  perform  its  part  of  the  contract 
by  a  series  of  carriages  from  station  to  station  by  dif- 
ferent trains,  at  its  convenience,  but  is  bound,  when  the 
passenger  selects  the  train  he  wishes  to  go  on,  to  carry 
him  to  his  destination  without  unreasonable  delay. 
The  rights  of  the  parties  in  this  respect  are  reciprocal, 
and  therefore  the  passenger,  after  the  carrier  has  en- 
tered on  the  performance  of  its  obligation,  has  no  right 

4Lafarier  v.  Railway  Co.,  84  Me.  286,  24  Atl.  848.  expressly  over- 
rulln.^  Dryden  v.  Kaihvay  Co.,  supra.  , 

5  Boston  &  M.  R.  Co.  v.  Traftou,  151  Mass.  229,  23  N.  E.  829. 
(740) 


Ch.  22)  TICKETS.  §  291 

to  demand  porformaiice  by  breakiiii;  the  transit,  and  n^- 
snming  the  journey  again  at  another  time,  liy  volun 
tarily  leaving  the  train  at  an  intermediate  station,  the 
passenger  takes  from  the  carrier  the  opportunity  of 
completing  its  contract,  and  thereby  releases  it  from 
further  obligation  to  do  so.'  And,  of  course,  if  the  tick- 
et is  expressly  limited  to  a  particular  train  or  for  a  con- 
tinuous journey,  the  passenger  has  no  right  to  stop  oft" 
at  an  intermediate  station,  and  afterwards  resume  his 
journey  on  another  train,  without  paying  fare." 

It  is  the  duty  of  a  passenger  to  inform  himself  wheth- 
er or  not  he  can  make  the  continuous  journey  called  for 
by  his  ticket  on  the  train  on  which  he  embarks.  He 
has  no  right  to  take  a  train  which  does  not  run  to  his 
destination,  and  leave  it  at  some  intermediate  point, 
and  there  take  passage  on  a  through  train  to  his  desti- 

§  291.  1  Hatten  v.  Railroafl  Co..  :;!)  Ohio  St.  :MT>;  Drew  v.  Kailroad 
Co.,  .51  Cal.  42.j;  Churchill  v.  Railroad  Co.,  U7  111.  :}90:  Stone  v.  Rail 
road  Co.,  47  loAva,  82;  McClure  v.  Railroad  Co.,  34  Md.  r.:J2;  Cheney 
V.  Railroad  Co..  11  Mete.  (Mass.)  121;  Wymau  v.  Railroad  Co..  ."'.l 
Minn.  210,  25  N.  W.  349;  State  v.  Overton,  24  N.  .T.  T.aw.  4:'..-);  Terry 
V.  Railroad  Co.,  13  Hun  (N.  Y.)  359;  Oil  Creek  &  A.  R.  Ry.  Co.  v.  Clark. 
72  Pa.  St.  231;  Dietrich  v.  Railroad  Co.,  71  Pa.  St.  4.32;  Breen  v. 
Railroad  Co.,  50  Tex.  45;  Robert.s  v.  Koehler,  ,30  Fed.  94.  The  lad 
that  a  ticket  is  sood  lor  20  days  does  not  sive  a  passenger  the  right  to 
stop  over  at  an  intermediate  station,  though  he  completes  his  cut  ire 
join-ney  in  20  days.     Craig  v.  Railroad  Co.,  24  I'.  C.  <,).  P..  5(14. 

2  Pierce  v.  Pennsylvania  Co..  19  IYmI.  Cas.  037;  Gale  v.  Railroad  Co., 
7  Hun  CS.  Y.)  (570;  .lohnson  v.  Railroad  Co..  03  Md.  100.  A  pas.senger 
holding  a  ticket,  limileil  as  to  time  and  to  a  particular  train  \v;is 
directed  to  the  wrong  train  by  the  company's  servants.  The  con- 
ductor put  him  off  at  the  next  station,  and  at  that  station  he  took  the 
train  designated  l)y  the  ticket.  Held,  that  liie  conductor  of  that  train 
had  no  right  to  cjfct  liim.  because  the  ticket  called  for  :i  continuous 
passage.     Elliott  v.  Railroad  Co.,  ."..",  llun.  7S,  o  .\.  V.  Siipp.  30.3. 

(741) 


§  291  CARRIERS  OF  PASSENGERS.  (Ch.  22 

nation,  even  though  the  latter  train  maj  be  the  one  he 
should  have  taken  in  the  first  instance.'  This  rule  re- 
quiring a  continuous  journey  holds  good  in  case  of  a 
passenger  who,  at  an  intermediate  station,  changes 
from  a  local  to  a  fast  through  ti-ain,  which  reaches  his 
destination  at  an  earlier  hour  than  the  train  on  which 
he  first  took  passage/  So,  the  right  to  a  continuous 
passage  on  a  ticket  refers  to  a  continuous  passage  by 
the  person  to  whom  the  ticket  is  issued;  and  he  can- 
not transfer  his  right  to  complete  the  journey  on  the 
train  on  which  he  took  passage  to  another  person  at  an 
intermediate  station.^ 

But  a  passenger  is  not  bound  to  commence  his  jour- 
ney at  the  point  named  in  his  ticket.  He  may,  if  he 
chooses,  purchase  another  ticket  to  an  intermediate  sta- 
tion, and  then  make  a  continuous  journey  on  his  origi- 
nal ticket  from  such  intermediate  station  to  destina- 
tion. He  may  rightfully  enter  a  train  at  a  point  nearer 
the  place  of  destination  than  the  station  named  in  his 
ticket.'  So,  if,  from  accident,  misfortune,  or  other 
cause,  and  without  the  passenger's  fault,  his  transit  be 

3  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Henry,  84  Tex.  678.  19  S.  W.  870; 
Johnson  v.  Railroad  Co.,  63  Md.  106. 

4  Cleveland,  C.  &  C.  R.  Co.  v.  Bartram,  11  Ohio  St.  457;  Pennsyl- 
vania R.  Co.  V.  Parry,  55  N.  J.  Law,  551,  27  Atl.  914. 

5  Walker  v.  Railway  Co.,  15  Mo.  App.  333;  Cody  v.  Railroad  Co.,  4 
Sawy.  114,  Fed.  Cas.  No.  2.940. 

6  Auerbach  v.  Railroad  Co.,  89  N.  Y.  281,  reversing  60  How.  Prae.  (N. 
y.)  382.  But  the  fact  that  the  train  does  not  depart  at  its  advertised 
time  does  not  give  a  passenger  who  has  purchased  a  ticket  "good  for 
tins  day  only"  the  right  to  leave  the  train  at  an  intermediate  station, 
and  then  resume  his  journey  on  another  train.  Briggs  v.  Railway  Co., 
24  U.  C.  Q.  B.  510. 

(742) 


Ch.  22)  TICKETS.  §  292 

interrupted,  and  it  be  more  llian  an  ordinarv  delay, 
tlieu  lie  may  resume  his  journey  afterwards,  upon  a  dif- 
ferent train,  and  without  the  payment  of  fare.  lit  lue, 
where  a  train  is  delayed  at  about  dark  by  a  wreek  on 
the  road,  and  a  sick  passenger  is  informed  that  the  de- 
lay will  last  several  hours,  and  perhaps  all  night,  he  is 
not  required  to  remain  on  the  car  an  indefinite  time; 
and,  if  he  goes  to  an  hotel  dunng  the  night,  he  has  the 
right  to  resume  his  journey  on  another  train  the  next 
day,  without  payment  of  additional  fare.^ 

It  has  been  held  that  when  a  passenger  gets  on  a 
train  at  an  intermediate  station  to  complete  his  jour- 
ney, which  he  began  at  another  time  and  on  another 
train,  and  tenders  his  unused  ticket,  the  conductor  has 
no  right  to  retain  it,  and  at  the  same  time  deny  his 
right  to  ride  under  it.  Xor  has  the  conductor  any 
right  to  eject  the  passenger  where  he  offers  to  pay  his 
fare  on  the  return  of  the  ticket  to  him.^ 

§  292.     SAME— COUPON  TICKETS. 

A  coupon  tick,et  issued  by  a  railroad  company  over 
its  own  and  connecting  lines  is  an  entire  contract  as  to 
each  line,  but  severable  as  between  the  different  lines. 
When  the  passenger  enters  on  the  journey  over  any 

7  "Wilsey  v.  Railroad  Co.,  S3  Ky.  511. 

8  Vanldrk  v.  Railroad  Co.,  76  Ta.  St.  66.  Tlu"  court  said:  '-The 
conductor  required  payment,  not  only  for  tlie  rido  plaintiff  was  then 
taking,  but  also  the  yielding  up  of  a  ticket  on  whicli  he  was  not  riding. 
The  conductor  had  no  such  right.  To  concede  to  him  the  right  to 
demand  of  a  passenger  anything  additional  to  the  payment  of  fare 
would  be  frauglit  with  iiukIi  the  most  miscliievous  consiMiucnces." 
But  .see  ante,  §  283,  as  to  tlii'  right  to  forfi  it  tickets,  and  post.  §  338,  as 
to  duty  of  returning  ticket  lo  passenger  <iii  rj ciion. 

(Tt;{) 


§  292  CARRIERS  OP  PASSENGERS.  (Ch.  22 

one  of  the  lines,  he  is  bound  to  continue  without  stop 
to  the  end  of  his  journey  thereon.  He  may,  however, 
stop  over  at  the  end  of  each  line.^  In  such  a  case  the 
last  carrier  cannot  complain  that  the  passenger 
stopped  off  at  stations  not  on  its  line.-  This  principle 
is  also  applicable  to  coupon  tickets  over  a  line  of  rail- 
way owned  by  the  same  company,  but  divided  into 
separate  divisions,  for  each  of  which  there  is  a  cou- 
pon upon  the  ticket.  Each  coupon,  in  the  absence  of 
special  "stop-over"  privileges,  requires  the  traveler  to 
make  a  continuous  journey  over  the  division  for  which 
it  is  issued.  It  is  a  sort  of  separate  and  independent 
contract  for  carriage  over  that  division;  but,  when 
the  end  of  the  division  is  reached,  the  passenger  may 
leave  the  train,  and  subsequently  resume  his  journey 
on  another  train  over  the  next  division,  upon  the  cou- 
pon issued  for  it.^ 

§  292.  1  Nichols  v.  Railroad  Co..  23  Or.  123,  31  Pac.  29G;  Brooke  v. 
Railway  Co.,  15  Mich.  332;  Little  Rock  &  F.  S.  Ry.  Co.  v.  Dean,  VA 
Ark.  529. 

2  Auerbach  v.  Railway  Co.,  89  N.  Y.  281,  reA'ersiug  GO  How.  Prac. 
(N.  Y.)  382.  But  the  passenger  cannot  leave  the  train  on  one  of  the 
roads,  and  afterwards  continue  his  journey  on  another  train  on  the 
same  road.  Kelsey  v.  Railroad  Co.,  28  Hun  (N.  Y.)  400.  W^here  a 
railroad  ticket  is  purchased,  good  for  a  eontuuious  passage  over  con- 
necting roads,  and  from  any  cause  not  tlie  fault  of  the  passenger,  or 
the  result  of  his  carelessness  or  wrong,  the  company  is  prevented  from 
making  a  connection  according  to  the  letter  of  its  contract,  and  tlie 
passenger  is  left  over,  lie  has  a  riglit  to  go  upon  the  fii'st  train  of  tlie 
company  to  his  point  of  destination,  and  is  in  no  sense  a  trespasser 
in  attempting  to  properly  exercise  that  right.  Watkius  v.  Railroad 
Co.,  21  D.  C.  1. 

3  Spencer  v.  Lovejoy,  96  Ga.  657,  23  S.  E.  836.  Where,  by  the  rules 
of  the  company,  a  passenger  has  the  right  to  stop  over  at  the  end  of 
each  division  of  the  road,  he  cannot  stop  off  at  places  other  than  the 

(744) 


Ch.  22)  TICKETS.  §   293 

§  293.     SAME— STOP-OVER  PRIVILEGES. 

A  ticket  "liood  to  stop  off  at  all  points"  justifies  the 
passenger  in  stopping  off  at  a  station  short  of  his  des- 
tination, and  subsequently,  within  the  life  of  his  ticket, 
taking  another  train  to  his  destination;  and  though, 
on  his  presentation  of  his  ticket  to  the  conductor,  with 
notice  of  his  intention  to  stop  over,  the  conductor  takes 
it  up,  and  gives  no  check  or  token  in  lieu  thereof,  the 
passenger's  rights  will  not  be  prejudiced;  and  the 
same  conductor,  with  knowledge  of  all  the  facts,  will 
not  be  justified  in  ejecting  him  from  the  train,  on  his 
subsequent  resumption  of  the  journey.'  But,  if  the 
ticket  confers  no  right  on  the  passenger  to  stop  over, 
he  must  comply  with  the  terms  of  a  stop-over  check 
given  to  him  by  the  conductor,  and  he  cannot  use  it 
after  the  time  limited  therein  has  expired.' 

end  of  his  division,  and  resume  his  journey,  without  paying  fare  1o  the 
end  of  his  division:  and  it  is  iuimaterial  that  lie  is  iffnorant  of  the 
rules.     Dunphy  v.  Railway  Co..  42  N.  Y.  Super.  Ct.  128. 

§  293.    1  Cherry  v.  Railroad  Co.,  52  Mo.  App.  499. 

2  Churchill  v.  Railroad  Co.,  67  111.  H90.  A  passenger  holding  a 
through  ticket,  who  desired  to  stop  off  at  an  internuHliate  station, 
asked  the  conductor  to  indorse  his  ticket  for  this  purpose,  as  recpiired 
by  tlie  rules  of  the  company.  The  conductor  informed  him  that  this 
was  unnecessary,  and  the  passenger  got  off.  He  resumed  his  journey 
•on  another  train,  and  no  question  was  raised  about  his  ticket.  Hi  foif 
reacliing  his  destination,  he  got  off  at  another  .station,  wiihout  applying 
for  any  indorsement;  and.  when  he  resumed  his  journey  on  :i  tiilrd 
train,  tlie  conductor  refused  to  honor  liis  ticket,  and  ejected  liiiii  for 
noni)ayment  of  fare.  Held,  that  the  privilege  granted  liim  hy  tiie 
conductor  of  the  first  train  was  exhausted  when  lie  einharki-d  on  the 
second  train,  and  that  lie  then  became  subject  to  all  tlie  company-s 
regulations,  and  c.uld  not  again  stop  over  at  a  way  st;ilinn  without 
having  his  ticket  iiidor.sed.     Denny  v.  Railroad  Co..  .'.  I>.iiy  iN.  V.)  :.o. 


§  293  CARRIERS  OF  PASSENGERS.  (Ch.  22 

Where  a  ticket  ai;eut  sells  a  ticket  good  over  sev- 
eral connecting-  lines  of  railroad,  witli  a  representation 
that  the  pnrchaser  may  stop  off  at  any  point  on  any  of 
the  roads,  the  question  whether  snch  representation 
formed  part  of  the  contract,  and  whether  he  had  au- 
thority to  bind  the  connecting  roads  by  a  stipulation 
in  reference  to  the  right  to  stop  over  on  their  lines, 
is  a  question  of  fact  for  the  jury.^  But  the  fact  that 
the  conductor  of  a  train  which  does  not  go  through  to 
a  passenger's  destination  permits  the  passenger  to  ride 
to  an  intermediate  station  does  not  confer  anv  right  on 
the  passenger  to  take  the  proper  train  at  the  inter- 
mediate station,  and  complete  his  journey  on  the  orig- 
inal ticket/ 

3  Robinson  v.  Railroad  Co.,  2  Lea  (Tenn.)  594.  In  tliis  case  the 
court  said:  "A  ticket  is  not  sucli  a  written  contract  as  to  exclude 
]iarol  representations  made  on  the  sale  of  the  ticliet."  Where  a  pas- 
senger, on  applying  for  information  to  a  train  agent  or  conductor,  is 
informed  by  him  that  he  may  get  off  at  a  station,  and  continue  his 
journey  by  the  next  train  upon  the  same  ticlvet,  and  the  passenger, 
relying  upon  such  statement,  leaves  the  ti-ain  at  the  station,  the  com- 
pany is  bound  to  cany  him  on  the  next  train  to  the  end  of  his  route 
upon  that  ticket,  and  is  estopped  from  denying  the  right  of  the  con- 
ductor to  make  that  agreement,  and  from  asserting  that  a  stop-over 
check  is  required.     Tarbell  v.  Raihvay  Co.,  24  Hun  (N.  Y.)  51. 

4  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Henry,  84  Tex.  678,  19  S.  W.  870.  A 
passenger  who  has  stopped  off  at  an  intermediate  station,  and  who 
enters  another  train,  and  claims  the  right  to  continue  his  journey  on 
his  ticket,  under  permission  given  him  by  tlie  conductor  of  the  first 
train,  cannot  shift  his  position  at  the  trial  when  it  appears  that  only 
train  agents  have  the  power  to  modify  the  rorce  of  tickets,  and  rely 
for  a  recovery  for  his  ejection  on  the  fact  that  a  train  agent,  and  not 
a  conductor,  had  given  him  the  privilege  claimed.  Petrie  v.  Railroad 
Co.,  42  N.  J.  Law,  449. 

(746) 


Ch.  22)  TICKETS.  §  295 

§  294.     SAME— CALIFORNIA  STATUTE. 

The  Califoruia  Code  ^  provi<les  that  every  railroad 
ticket  entitles  the  holder  to  ride  to  the  station  or  de- 
pot of  destination,  or  to  any  intermediate  station,  and 
from  an}^  intermediate  station  to  the  depot  of  destina- 
tion designated  in  the  ticket,  at  any  time  within  six 
months  after  it  is  issued.  This  statute,  it  has  recently 
been  held,  is  still  in  force;  and,  to  entitle  a  passen- 
ger to  stop  over  under  it,  it  is  not  necessary  that  he  pro- 
cure a  ticket  witJi  stop-over  i)riyileges,  but  he  may  do 
so  on  any  ticket  sold  at  the  regular  established  fare; 
and,  if  the  company-  desires  to  limit  this  right,  it  ma^' 
sell  tickets  at  a  reduced  rate,  with  provisions  against 
stop-over  privileges.^ 

g  295.     STREET-CAR  TRANSFERS  AND  TICKETS. 

By  accepting  a  transfer  check,  designating  the  point 
at  which  the  passenger  is  to  take  the  transfer  car,  a 
passenger  consents  to  the  regulations  of  the  street- 
car company  as  to  the  mode  of  making  the  transfer; 
and  he  has  no  right  to  enter  the  car  at  a  point  other 
than  that  designated  on  the  transfer  check,  without 
payment  of  fare.^  Nor  can  a  passenger  who  accepts 
a  transfer  check  for  another  line,  without  objection, 
ride  over  a  line  not  designated  in  the  transfer,  with- 

§  294.    1  Civ.  Code,  §  490. 

2  Roliinson  v.  Sonilicrn  Tac.  Co.,  lO.")  Cal.  .520,  8S  Pac.  94,  722.  It 
was  also  hold  that  this  statute  ai-plitMl  to  the  ISoutheru  Paiilic  ('om- 
pany. 

§  295.    1  Tcny  v.  Kaihvay  Co.,  .'".8  Mo.  App.  75. 

(717) 


§  295  CARRIERS  OF  PASSENGERS.  (Ch,  22 

out  payment  of  fare."  So,  a  passenger  to  whom  has 
been  issued  a  commutatfon  check,  good  over  a  con- 
necting line,  is  not  entitled,  after  he  has  once  changed 
cars,  and  surrendered  the  check  in  the  second  car  at 
the  request  of  a  conductor,  to  a  passage  in  a  third  car 
proceeding  further  on  the  same  line,  though  the  sec- 
ond car  stops  short  of  the  point  to  which  he  intended 
to  go,  and  though  he  is  told  by  the  conductor  of  that 
car  that  he  may  ride  in  the  third  car  without  payment 
of  fare.^ 

There  is  nothing  unreasonable  in  a  requirement  that 
a  transfer  ticket  from  one  route  of  a  street  railway  to  an- 
other shall  not  be  honored  unless  used  within  15  min- 
utes after  its  delivery  to  the  i^assenger,  in  the  absence 

2  Cm-pent ei-  v.  Kailroad  Co..  121  U.  S.  474.  7  Sup.  Ct.  1002.  Under 
a  city  ordinance  wliicli  gives  a  passenger  who  has  paid  one  fare  on 
any  line  operated  by  the  company  in  the  city  a  right  to  a  transfer 
check  entitling  him  to  a  continuous  passage  over  any  connecting  or 
crossing  line,  a  passenger  who  applies  for  and  accepts  a  transfer 
check  for  one  of  several  connecting  or  crossing  lines,  plainly  marked 
and  designated,  will  be  limited  to  the  line  .so  selected;  but  where  the 
route  designated  is  not  so  limited,  but  is  equally  applicable  to  several 
lines,  he  will  be  entitled  to  be  transported  over  any  one  of  them. 
Pine  V.  Railway  Co..  .")()  Minn.  144.  .12  N.  W.  y!»2. 

•••■  Ames  V.  Railway  Co..  117  :Ma-s.  .■'>41.  Under  Pub.  St.  Mass.  c. 
113.  S  47.  which  prohibits  conimutatiou  checks  issued  by  street  rail- 
ways in  the  city  of  Boston  from  Ijeing  used  over  the  same  route  on 
wliicli  the  cheek  was  issred.  or  a  route  parallel  thereto,  and  between 
and  including  two  common  points,  the  holder  of  such  a  check,  in  re- 
turning towards  his  starting  point,  is  not  entitled  to  be  carried,  upon 
the  check,  in  the  car  of  another  company,  whose  route  is  substantially 
parallel  to  the  route  of  the  company  issuing  the  check,  and  is  between 
and  includes  two  common  points,  although  a  wide  detour  is  made  at 
one  place  in  the  route  of  the  latter  company.  Crouin  v.  Railway  Co.. 
144  :Mass.  249,  10  N.  E.  S3'6. 
(748) 


Cn.  22)  TICKETS.  §  295 

of  a  charter,  ordinance,  or  contract  to  the  contrary; 
and  a  passenger  who  takes  the  connecting  car  after  the 
expiration  of  the  15  minutes  may  be  ejected  for  re- 
fusal to  pay  fare,  unless  it  is  the  tirst  car  that  passes 
the  point  of  transfer  after  alightiuo.  "It  is  the  duty 
of  a  passenger  receiving  such  a  transfer  to  read  it;  and 
his  failure  to  do  so  cannot  give  him  any  rights  against 
the  company  which  he  would  not  have  had  had  he  read 
it,  and  thus  been  advised  as  to  the  time  limitation."  * 

The  rules  of  a  street-railroad  company  carrying  pas- 
sengers over  two  sections  of  its  road  for  one  fare,  which 
require  a  passenger  boarding  the  car  on  the  first  sec- 
tion to  keep  and  show,  uudetached  by  him,  a  coupon 
ticket,  as  a  voucher  of  his  right  to  ride  on  the  second 
section,  is  reasonable  and  valid ;  and  a  passenger  who 
presents  a  detached  coupon  to  the  conductor  of  the  sec- 
ond section  may  be  ejected."^ 

4  Heffron  v.  Railway  Co.,  92  ilich.  4(Mi.  .52  N.  W.  802. 

5  De  Lucas  v.  Railroad  Co.,  38  La.  Ami.  930. 

(749) 


§  296  CARRIERS  OF  PASSENGERS.  (Cll.  23 

■     • 

CHAPTER  XXIII. 

DUTY  TO  CARRY  PUNCTUALLY  AND  TO  DESTINATION. 

§  296.  Punctuality  in  Running  Time. 

297.  Same — Ferrymen. 

298.  Duty  to  Carry  from  Place  of  Departure  to  tbat  of  Destination. 

299.  Failure  to  Take  on  Passenger. 

300.  Failure  to  Carry  to  Destination. 

301.  Same — Announcing  Station. 

302.  Regulations  as  to  Stopping  Places  for  Trains. 

303.  Same— Passenger's  Duty  to  Know  Regulations. 

304.  Same — Rights  and  Duties  of  Passenger  on  Wrong  Train. 

305.  Same — Represputations  of  Ticket  Agent. 
300.  Same— Waiver  by  Conauctor. 

307.  Same— Waiver  by  Custom. 

308.  Regulations  Restricting  Tickets  to  Particular  Trains. 

309.  Restriction  as  to  Train  in  Ticket. 

310.  Restriction  as  to  Route. 

§  296.     PUNCTUALITY  IN  RUNNING  TIME. 

The  publication  of  a  time-table,  in  common  form, 
imposes  on  a  common  carrier  the  obligation  to 
use  due  care  and  skill  to  have  his  conveyance 
arrive  and  depart  at  the  precise  time  indicated 
in  the  table;  but  it  does  not  import  an  absolute 
and  unconditional  engagement  for  such  arrival 
and  departure,  and  does  not  make  the  carrier 
liable  for  -want  of  punctuality  "which  is  not  at- 
tributable to  his  negligence. 

The  publication  of  a  time-table  by  a  common  car- 
rier caunot  amount  to  less  than  a  representation  that 
it  is  ordinarily  practicable  for  him,  by  the  use  of  due 
(750) 


Ch.   23)  DUTY    OF    PUNCTUALITY.  §    290 

care  and  skill,  to  run  according  to  the  table,  and  an 
engagement  on  his  part  that  he  will  do  all  that  can  be 
done  by  the  use  of  due  care  and  skill  to  accomplish 
that  result.  But  the  carrier's  duty  does  not  go  be- 
yond this.  He  is  not  a  warrantor  or  insurer  of  punctu- 
alitv  any  more  than  he  is  a  warrantor  or  insurer  of 
safety  in  transportation.^  By  issuing  a  ticket  for  a 
train  adyertised  to  arriye  at  destination  at  a  specified 
hour,  a  railroad  company  merely  contracts  to  use  due 
diligence  to  haye  the  train  arriye  at  the  hour  specified ; 
and  when  the  train  is  delayed  by  reason  of  floods,  and 
therefore  fails  to  make  connection  with  another  train 
at  an  intermediate  station,  the  company  is  not  bound 
to  derange  its  ordinary  traffic  by  at  once  putting  on  a 
special,  and  it  may  wait  for  the  next  regular  train, 

§  296.  1  Gordon  v.  Railroad,  52  N.  H.  596.  A  statement  in  the  of- 
ficial time-table  of  a  sleeping-car  co-upany  that  the  departure  of  its 
train  from  Paris  corresponds  with  the  arrival  of  a  certain  train  from 
London  is  not  a  warranty  of  the  punctnaiity  of  the  arrival  of  the 
London  train,  and  does  not  render  it  liable  in  damages  to  a  passenger 
on  the  London  train.  Avho  had  secured  berths  on  the  sleeping-oar  train, 
but  who  mis.sed  it  because  the  London  train  had  not  arrived  in  Paris 
at  its  advertised  time.  Lockyer  v.  Trains  Co.,  01  Law  J.  Q.  B.  .'.(H. 
A  railroad  company,  which  fails  to  run  its  train  according  to  its  pub- 
lished schedule,  unless  prevented  by  some  valid  reason,  is  liable  to 
one  who  goes  to  the  depot  to  take  that  train,  for  ihc  damages  actually 
sustained  by  him  as  the  direct  and  neces>;ary  result  thereof.  Savan- 
nah, S.  &  S.  K.  Co.  V.  Bonaud.  5.S  Ca.  LSD.  In  many  of  the  states, 
railroad  companies  are  required  by  statute  to  run  tlu'ir  trains  at  reg- 
ular times,  to  be  fixed  by  public  notice.  Mausf.  Dig.  Ark.  §  547.->; 
Rev.  St.  lud.  1894,  §  olS-".  (Kev.  St.  1S81,  §  392.5);  (ien.  St.  Kan.  ISS'.t. 
par.  V2V2;  C.en.  St.  Ky.  1SS9,  §  783;  1  How.  Ami.  St.  Mich.  §  3;!-J»; 
Rev.  St.  Mo.  1889,  S§  2582-2.-.84;  Comp.  Laws  .\.-l..  ]S'X',.  v.  16,  §  121. 
p.  .",12;  Comp.  Laws  N.  M.  1SS4.  S  JimI:  i.aws  N.  V.  is.-,u,  <•.  1  Ki.  § 
36;  Code  N.  C.  188:'.,  §  1963;   Sayles'  Civ.  St.  Tex.  art.  422i;. 

(751) 


§  296  CARRIERS  OF  PASSENGERS.  (Cll.  23- 

thoui^li  that  is  also  delayed  by  floods.'  So,  a  carrier 
by  steamer  is  not  responsible  for  delay  in  the  transpor- 
tation of  a  passenger  caused  by  a  defect  in  the  rudder 
post  of  the  vessel,  which  defect  was  not  discoverable 
before  leaving  port.^ 

But  the  purchaser  of  a  ticket  has  a  right  to  rely  on 
information  given  him  by  the  ticket  agent  at  a  union 
station,  of  whom  he  purchased  the  ticket,  as  to  the  time 
when  the  train  will  arrive  at  his  destination.* 

A  railroad  company,  or  other  common  carrier,  of 
course,  possesses  the  power  of  changing  the  running 
time  of  its  trains,  on  giving  reasonable  notice  to  the 
public.  A  regulation  of  a  railroad  company  that  no 
train  shall  enter  an  Indian  reservation  within  six  hours 

2  Fitzgeiakl  v.  liaihvay  Co.,  ;i4  Law  T.  (N.  S.)  771.  The  mere 
taking  of  a  ticket  for  a  railway  journey  does  not  amount  to  a  con- 
tract by  the  conutany,  or  impose  on  it  the  duty,  to  have  a  train  ready 
to  start  at  tlie  time  at  whicli  the  passenger  is  led  to  expect  it.  "The 
only  duty  which  the  law  attaches  to  such  a  contract  (a  ticket  to  con- 
vey a  passenger  from  one  place  to  another)  is  that  the  passenger  will 
be  carried  in  a  reasonable  time."  Hurst  v.  Railway  Co..  19  C.  B.  (N. 
S.)  310,  34  Law  J.  C.  P.  -iM.  In  the  common  stipulation  on  railway 
tickets,  that  the  company  shall  not  be  liable  for  any  delay  in  the 
starting  and  arrival  of  trains  arising  from  "accident  or  other  cause," 
the  words  "or  other  cause"  mean  other  causes  in  the  nature  of  acci- 
dent, and  not  any  cause  whatever;  and  hence  the  neglect  of  the  fire- 
man to  light  the  fire  in  time,  in  consequence  of  which  the  engine  has 
not  sufficient  steam  up  to  draw  the  train,  is  not  within  the  exemption. 
Buckmaster  v.  Railway  Co.,  2S  Law  T.  (X.  S.)  471. 

3  Xeal  V.  Allan,  18  Xova  Scotia,  449. 

4  Turner  v.  Railway  Co.,  15  Wash.  213,  40  Tac.  243.  W' here,  on 
breach  by  a  carrier  of  its  contract  to  carry  plaintiff  to  his  destination, 
due  to  the  destruction  of  its  road,  plaintiff,  on  the  advice  of  the  car- 
rier's conductor,  takes  the  train  of  another  line,  and  is  also  delayed 
on  the  second  line  by  reason  of  washouts,  the  first  carrier  is  liable 
for  such  second  delay.     Id. 

(752) 


Ch.   23)  DUTY    OF    PUNXTUALITY.  §    296 

of  noon  on  the  day  it  is  thrown  open  for  settlenienl, 
and  that  all  trains  shall  be  stationed  on  the  edge  of  the 
reservation  thirty  minutes  before  the  hour  of  oi)ening, 
and  shall  not  be  entered  by  passengers  before  that  time, 
is  a  reasonable  regulation,  being  adopted  in  accordance 
with  a  proclamation  of  the  secretary  of  the  interior.  To 
that  extent,  the  usual  schedule  time  is  abandoned ;  and 
a  passenger  for  a  station  within  the  reservation,  who 
refuses  to  leave  a  train  which  lias  stopped  at  the  ('(Ige, 
under  this  regulation,  may  be  ejected.^  But  reason- 
able notice  of  a  change  in  running  time  must  be  given 
to  the  public.  Thus,  a  passenger  who  presents  him- 
self at  a  station  to  take  a  train  advertised  to  start  at 
9:30  p.  m.,  but  who  finds  that  it  has  been  postponinl 
for  two  hours  for  the  accommodation  of  passengers  de- 
sirous of  attending  a  public  entertainment,  may  re- 
cover from  the  company  for  his  expenses  incurred  in 
hiring  a  horse  and  buggy  to  take  him  to  his  destina- 
tion, where  the  railroad  company  failed  to  give  proper 
notice  to  the  public  of  the  change  in  time.* 

5  Decker  v.  Kailroad  Co.,  3  Okl.  r,:,:i,  41  I'ac.  (ilU. 

6  Sears  v.  Kailroad  Co.,  14  Alleu  (.Mass.)  433.  A  railroad  comiiany 
which,  by  moans  of  its  published  time-tables,  represents  that  it  will 
carry  to  a  station  on  a  connecting  road,  is  lial)le,  as  for  a  false  repre- 
sentation, to  a  passenger  Avho  purchased  his  ticket  to  sui-li  station, 
but  who  was  unable  to  reach  his  destination  without  delay,  bccau.se 
the  connecting  carrier  had  taken  off  its  train  for  the  advertised  sta- 
tion before  the  publication  of  the  time-table.  Denton  v.  Kail  way  Co.. 
5  El.  &  Bl.  8G0. 

V.  1  FET.CAR.PAS. 48  (753) 


§  298  CARRIERS  OF  PASSENGERS.  (Cll.  23 

5  297.     SAME— FERRYMEN. 

The  duty  to  exercise  reasonable  diligence  in  the 
transportation  of  passengers  devolves  on  ferrymen  as 
well  as  other  common  carriers.  A  ferrjanan  cannot 
excnse  a  delay  of  14  honrs  in  transporting  a  passenger 
on  the  ground  of  high  water,  since  it  is  his  duty  to  pro- 
vide himself  with  proper  boats  to  accommodate  the 
public  at  all  stages  of  water,^  So  a  ferryman  is  bound 
to  transport  persons  across  the  stream  after  night; ' 
and  one  who  has  been  detained  at  a  ferry  from  fi 
o'clock  in  the  evening  until  6  o'clock  in  the  morning 
may  recover  the  legal  penalty  for  unreasonable  deten- 
tion at  a  ferry,  unless  there  are  special  circumstances 
which  would  make  it  dangerous  to  cross  with  the  fer- 
rv.^ 


§  298.  DUTY  TO  CARRY  FROM  PLACE  OF  DEPAR- 
TURE TO  THAT  OF  DESTINATION. 

The  duty  of  a  eomnion  carrier  to  transport  a  pas- 
senger from  the  place  of  departure  to  that  of 
destination  is  not  an  absolute  duty;  but  it  must 
afford  the  passenger  a  reasonable  time  and  op- 
portunity to  board  the  vehicle  at  the  place  at 
■which  it  agreed  to  receive  him,  and  to  leave  it 
at  the  place  to  -which  it  agreed  to  transport 
him.     The   carrier  has  also  the  right  to  make 

§  297.    1  Jaliine  v.  Midselt.  25  Ark.  474. 

2  Pate  V.  Henry,  .5  Stew,  i:  P.  (Ala.)  101. 

3  Koretke  v.  Irwin,  loO  Ala.  323,  13  South.  '.'4:!. 

(754) 


Ch.   23)  DUTY    OF    PUNCTUALITY.  §    290 

reasonable  rules  and  regulations  as  to  the  stop- 
page of  trains  at  the  different  stations  along  its 
route. 

As  in  all  other  cases  involvinji-  carriers  of  passen- 
gers, the  dutj  to  caiTy  from  the  place  of  departure  to 
that  of  destination  is  not  absolute.  In  cases  of  prop- 
erty, the  carrier's  duty  is  absolute  to  receive  it  at  the 
place  of  departure,  and  to  deliver  it  at  destination.  In 
the  case  of  passengers,  the  duty  is  simply  to  afford  a 
sullicient  time  and  opjiortunit}'  to  board  or  leave  the 
vehicle.  Passengers  are  presumed  to  be  ready  and 
willing  to  get  on  board  at  the  place  of  departure,  and 
to  quit  at  the  place  of  destination;  and  it  is  not  the 
duty  of  the  carrier  to  put  them  on  or  olT,  because,  as 
rational  beings,  it  is  to  be  i)resumed  that  they  will  do 
what  they  expressly  set  out  to  do.  A  duty  therefore 
devolves  on  the  passenger;  aiul  it  is  to  use  reasonable 
care  and  diligence  to  board  and  leave  the  vehicle,  and 
to  avail  himself  of  the  opportunity  afforded  him  by  the 
carrier  to  do  so.^ 

§  299.  FAILURE  TO  TAKE  ON  PASSENGER. 

By  the  publication  of  notice  to  the  public  that  he  will 
stop  his  vessel  at  an  appointed  time  and  place,  for  the 
purpose  of  receiving  passengers  on  board  for  transpor- 
tation, a  common  carrier  contracts  an  engagement  with 

§  29S.  1  Southeni  R.  Co.  v.  Kendrifk,  -10  Miss.  .".74.  Sec.  also, 
ante.  c.  4,  as  to  the  carrier's  duly  in  receiving  and  discharging  pas- 
sengers. Tliat  cliapter  relates  to  per.sonal  injuries  received  l»y  ihe 
passenger  I'roui  tlie  carrier's  breacli  of  duly,  wliile  tlie  |)n>sent  cli.-ipler 
relates  to  tlie  carrier's  lial)i]ity  fuv  lailiu'e  to  receive  a  passenger,  or 
for  failure  to  carry  luni  to  tlcsiiiiaiinu. 

(75."j) 


§  299  CARRIERS  OF  PASSENGERS.  (Cll.  23 

the  public  whicli  his  duty  as  common  carrier  binds 
him  to  perform;  and  for  his  failure  to  stop  the  A^essel 
as  advertised,  aA' ithout  excuse,  he  will  be  liable  in  dam- 
ages to  a  person  who,  on  tlie  faith  of  such  notice,  went 
to  the  wharf  at  the  appointed  time,  and  remained 
there  during  a  cold  and  inclement  night,  waiting  for 
the  boat,  and  whose  health  was  injured  by  reason  of 
the  exposure.^  So,  a  custom  of  a  railroad  company  to 
stop  a  train  at  a  station  on  signal  imposes  the  duty  on 
the  company  to  stop  the  train  on  its  being  signaled, 
and  the  duty  on  its  servants  operating  the  train  to  ex- 
ercise care  to  observe  the  signals.  A  failure  of  its 
servants  to  perform  such  duty,  where  a  ticket  has  been 
purchased  on  the  faith  that  they  will  do  so,  creates  as 
clear  a  liability  as  if  the  train  had  been  advertised  to 
stop  at  that  station,  and  had  not  done  so."  But  where 
it  is  customary  to  stan  a  stock  train  from  any  point 
in  the  company's  yards,  the  company  is  not  responsible 
to  a  drover  for  its  failure  to  stop  at  the  station,  by  rea- 

§  299.  1  Heirn  v.  McCaugban,  32  Miss.  17.  A  handbill  posted  up  iu 
the  office  of  persons  who  sell  tickets  for  passage  on  a  certain  steamer 
form  no  part  of  the  contract  of  passage,  in  the  absence  of  evidence 
that  the  persons  selling  the  tickets,  and  who  signed  and  displayed 
the  handbills,  were  agents  of  the  steamer.  The  mere  fact  that  the 
tickets  were  recognized  on  board  as  genuine  is  not  sutiicient.  Mills  v. 
Shult,  2  E.  D.  Smitn  (N.  Y.)  139.  The  time-table  of  a  railway  com- 
pany, which  on  its  face  announces  that  it  is  for  the  government  and 
iul'ormatiou  of  employes  only,  and  in  terms  reserves  to  the  company 
the  right  to  vary  therefrom  at  pleasure,  is  not  admissible  in  evidence 
in  a  suit  for  damages  against  the  company  for  not  stopping  the  train 
at  a  place  mentioned  in  the  time-table,  but  at  which  no  station  was 
ever  really  established.     Beauchamp  v.  Railway  Co.,  56  Tex.  239. 

2  Illinois  Cent.  R.  Co.  v.  Siddons,  53  111.  App.  (JOS. 


Ch.    23)  DUTY    OF    PUNCTUALITY.  §    SOO 

son  of  which  he  was  prevented  from  aceonipauyin<i  his 
stock. ^ 

g  300.     FAILURE  TO  CARRY  TO  DESTINATION. 

A  railroad  company  which  fails  to  deliver  a  ])assen- 
ger  at  the  station  to  which  it  sells  a  ticket,  either  by 
stopping  the  train,  or  by  returning  the  passenger  thith- 
er, is  liable  in  damages,  unless  it  shows  some  con- 
trolling exigency  which  prevents  such  delivery.^  It 
has  been  frequently  held  that  a  railroad  company  is 
liable  for  carr^dng  a  passenger  past  his  destination 
without  affording  him  an  opportunity  to  get  off." 
AA'here  a  railroad  company  sells  a  ticket  to  a  flag  sta 
tion,  at  which  its  trains  do  not  stop  unless  signaled  to 
do  so  for  the  purpose  of  receiving  passengers,  or  un- 
less there  are  on  board  passengers  bound  for  such  sta- 
tion, it  is  ordinarily  the  duty  of  the  conductor,  before 
reaching  the  station,  to  ascertain  the  destination  of  a 
passenger  holding  a  ticket  for  that  station,  and  to  sto|> 
the  train  there  to  allow  him  to  get  off;  and  it  is  not 
ordinarih'  incumbent  on  the  passenger  to  notify  the 
conductor  of  his  destination  before  being  called  on  to 
exhibit  his  ticket.^  It  has  even  been  held  that  a  \n\s- 
senger  who  is  carried  two  miles  past  his  destination, 
and  is  there  given  the  option  to  walk  back,  or  ride  on 
to  the  next  station  and  back  on  another  train  li-ee  of 

3  Ohio  &  M.  It.  Co.  V.  Brown,  40  111.  App.  KJT. 

§  300.     1  Samuels  v.  KailniMd  Co.,  3.j  S.  C.  4!I3,  It  S.  K.  HI.-.. 

2  Cahhvi'Il  V.  Itailroad  Co.,  80  Ga.  55(),  15  S.  E.  078;  Dave  v.  Steam- 
ship Co.,  47  La.  Ann.  "t(\,  17  South.  12S;  Strange  v.  Kailway  Co.,  C.l 
Mo.  App.  .jS<5. 

3  Chattanooga,  K.  \  C.  K.  Co.  v.  Lyon,  81)  (Ja.  IC,  I.")  S.  K.  lil 

(757) 


§  300  CARRIERS  OF  PASSENGERS.  (Ch.  23 

charge,  has  a  right  of  action  against  the  company, 
though  he  accepts  the  latter  alternative,  and  is  carried 
back  free  of  charge,  and  though  no  bodily  injury,  men- 
tal suffering,  insult,  oppression,  or  pecuniary  loss  be 
shown.  In  such  a  case,  however,  he  can  recover  only 
nominal  damages/  So,  a  passenger  on  a  freight  train 
has  the  right  to  be  discharged  at  the  station  platform, 
where  that  is  the  usual  place  adopted  by  the  carrier 
for  that  purpose;  and,  if  no  opportunity  is  given  him 
to  alight  there,  and  he  is  carried  beyond  his  destina- 
tion, and  ejected  a  half  a  mile  from  the  station,  the  car- 
rier is  liable.^ 

For  the  refusal  of  the  proprietor  of  a  steamboat  to 
carry  a  passenger  to  the  landing  designated  in  his 
ticket,  under  the  pretense  that  tJiat  landing  place  had 
been  abandoned,  and  landing  him  instead  at  another 
landing  on  the  opposite  bank  of  the  river  from  that 
to  which  it  had  agreed  to  carry  him,  an  action  lies,  in, 
which  plaintiff  is  entitled  to  recover  at  least  nominal 
damages.''     So,  where  a  passenger  is  received  on  a 

4  Thompson  v.  Railroad  Co.,  50  Miss.  31.5.  Wliere  a  wreck  necessi- 
tates a  transfer  of  passengers,  and  one  of  them  ia  by  mistalie  left 
behind  at  the  point  of  transfer,  the  company  is  liable  in  compensatory 
damages  if  the  conductor  failed  to  do  all  he  might  havp  done  to  insure 
the  continuance  of  plaintiff's  journey.  Alabama  &  V.  Ry.  Co.  v.  Pur- 
nell,  69  Miss.  652,  13  South.  472. 

c  White  Water  R.  Co.  v.  Butler,  112  Ind.  598,  14  N.  E.  599.  But 
uuder  Code  Miss.  1880,  §  1054,  which  provides  that,  for  injury  to  any 
passenger  on  any  freight  train  not  intended  for  passengers,  the  com- 
pany shall  not  be  liable  except  for  gross  negligence  of  its  servants, 
gross  negligence  must  be  shown  before  a  passenger  riding  on  a  freight 
train  can  recover  for  being  carried  past  his  destination.  Perkins  v. 
Railroad  Co.,  60  Miss.  726. 

6  Brulard  v.  The  Alviu,  45  Fed.  766. 

(758) 


Ch.    23)  DUTY    OF    rUXCTUALITY.  §    oOO 

;  teaiiiboat  for  a  point  kuowu  lo  be  danjj;eroiis  in  eltVet- 
iug  a  landing,  the  danger  will  n<»i  excuse  the  boat  and 
its  officers  for  a  failure  to  comply  ^Yith  the  contract.' 

AYliere  a  passenger  enters  a  street  car,  on  the  assur- 
ance of  the  compau3''s  agent  that  the  car  will  convey 
her  to  destination  Avithont  change,  a  contract  exists; 
and  the  passenger  has  a  right  of  action  for  the  com- 
pany's failure  to  run  the  car  through,  and  in  compelling 
her  to  leave  it,  and  walk  several  blocks,  where  another 
car  was  taken,  which  carried  her  to  destination.® 

Circumstances  may,  however,  excuse  the  carrier's 
failure  to  give  a  passenger  an  opportunity'  to  disem- 
bark at  destination.  Carrying  a  passenger  three-quar- 
ters of  a  mile  past  a  station  platform  is  excused  by 
proof  that  the  snow  was  badly  drifted  at  the  station, 
of  which  the  conductor  had  been  notified,  and  against 
which  he  had  been  cautioned;  that  a  freight  train  was 
following  closely;  that  it  was  night;  and  that  the 
conductor  and  engineer,  exercising  their  best  judg- 
ment, thought  it  safer  and  better  to  stop  wliere  they 
di<l  than  to  stop  at  the  station,  where  they  were  in  dan- 
ger of  stalling  the  train  in  the  snow."  So,  one  who 
I)urchases  a  ticket,  with  knowledge  that  the  company 
has  abandoned  an  old  depot  at  his  destination  for  a 
new  one,  half  a  mile  away,  can  maintain  no  arii«»n 
against  the  company  for  failure  to  carry  him  to  the  old 
depot.'" 

1  rorter  v.  The  Now  En^rl.ind  No.  2.  17  Mo.  290. 
8  Dillon  V.  Rnihvay  Co.,  <;4  .Mo.  Ai)i>.  4\S. 
'•>  ILwd  V.  Railway  Co..  .()()  Mich.  ."iOT,  50  N.  W.  1  14. 
10  .Martindalo    v.    Railroad    Co.,    (!0    Mo.    fiOS.      A    iiassoii^'cr    who, 
lliiMiigh  his  owu  carelcssuess  aud  iiiatteutiou,  ucgk'Cts  to  rhaiiye  tars 

(7.-i!)) 


§  301  CARRIERS  OF  PASSENGERS.  (Ch.  23 

§  301.     SA.ME— ANNOUNCING  STATION. 

No  principle  of  law  is  better  settled  than  that  a  rail- 
road company  carrying  passengers,  in  order  to  afford 
them  opportunity  to  leave  the  train  at  their  places  of 
destination,,  is  bound  to  have  the  names  of  the  different 
stations  announced,  upon  the  arrival  of  the  trains,  for 
a  sufficient  length  of  time  to  enable  a  passenger  to  get 
off  with  safety,  and  that  a  railroad  company  is  liable 
for  a  loss  or  injury  vi^hich  may  result  to  a  passenger 
from  a  violation  of  this  duty.^  But  it  is  not  necessary 
to  announce  the  names  of  intermediate  stations  for 
which  there  are  no  passengers.  The  officers  of  the 
train  have  a  right  to  presume  that  the  passenger  will 
not  leave  the  train  until  he  reaches  his  destination. 
Nor  is  the  company  bound  by  the  statements  of  pas- 
sengers to  a  fellow  passenger,  erroneously  informing 

at  a  certain  station,  and  is  thence  carried  in  the  wrong  direction,  may 
be  ejected  from  that  train  on  his  refnsal  to  return  to  that  station  on 
another  train,  which  would  have  carried  him  back  in  time  to  resume 
his  journey  Avithout  dehiy,  and  on  his  refusal  to  pay  fare  over  the 
route  on  Avhich  he  is  actually  traveling.  Page  v.  Railroad  Co.,  G  Duer 
(N.  Y.)  528. 

§  301.  1  Louisville,  X.  O.  &  T.  R.  Co.  v.  Mask,  04.  Miss.  738,  2 
South.  3G0;  Dorrah  v.  Railroad  Co.,  U5  Miss.  14,  3  South.  30.  This 
duty  is  required  of  railroad  companies  by  statute  in  some  of  the 
states.  Ky.  St.  1894,  §  784;  1  How.  Ann.  St.  Midi.  §  3417.  The 
railroad  company  is  not  relieved  from  liability  for  carrying  a  passen- 
ger past  his  destination  by  the  fact  that,  after  the  train  had  begun 
to  slow  up  at  the  station  where  the  passenger  wished  to  get  off.  the 
conductor  looked  into  the  train,  and  failing  to  see  the  passenger,  who 
had  gone  on  the  rear  platform  of  the  coach,  signaled  the  train  to  go 
ahead,  because  he  thought  that  the  passenger  had  gotten  off.  Louis- 
ville. N.  O.  &  T.  R.  Co.  v.  Mask,  04  Miss.  738,  2  South.  300. 
(700) 


Ch.   23)  DUTY    OF    PUNCTUALITY.  §    301 

liim  of  the  name  of  the  station  at  which  the  train  has 
arrived.- 

After  properly  announcin;^  the  name  of  a  station,  the 
carrier  is  not  bonnd  to  go  further,  and  <»ive  personal 
notice  to  a  passenger  traveling  on  an  ordinary  passen- 
ger train  that  his  station  has  been  reached.  It  is  im- 
practicable to  require  personal  notice  in  these  cases, 
because  it  would  consume  too  mtich  time  on  crowded 
trains,  cause  much  detention  in  traveling,  which  would 
be  a  public  inconvenience,  and  impose  a  duty  on  con- 
ductors,  where  there  is  a  long  train  and  many  passen- 
gers, which  it  would  require  an  extraordinary  mem- 
ory to  perform  properly.^  Xeither  is  a  carrier  liable 
for  the  failure  of  the  conductor  on  an  ordinary  passen- 
ger train  to  waken  a  sleeping  passenger  at  her  desti- 
nation,* though  he  had  promised  to  do  so.  The  car- 
rier's duty  is  performed  by  publicly  announcing  the 
name  of  stations,  and  it  is  the  passenger's  duty  to 
alight  when  the  train  comes  to  a  stop." 

2  Louisville,  N.  A.  &  C.  Ky.  Co.  v.  Cook.  12  Ind.  .\i)ii.  100.  .*^S  N.  E. 
1104. 

3  SouthAu  K.  Co.  V.  KeiKlriok,  40  Miss.  ,*^>74.  This  is  true,  ovon 
thoiifih  the  conductor  ha.s  i)romised  to  specially  notify  a  Icniali"  i>as- 
senger.  and  assist  her  from  the  train.  .St.  Louis  S.  W.  Uy.  Co.  v. 
:McCii11()Uj.'1i  (Tex.  Civ.  App.)  88  S.  \\'^  US5. 

■i  .Missomi.  K.  &  T.  Ky.  Co.  v.  Terry,  S  Tex.  Civ.  .\pp.  7S,  21  S.  W. 
4IX!:  Texas  &  P.  Ry.  Co.  v.  Alexander  (Tex.  Civ.  App.)  ;5(»  S.  W.  111.8. 
Where  a  sleeping  passenger  is  carried  jiast  Ins  destinatinn.  and  en- 
deavors to  aliglit  at  a  way  station  for  whii-li  there  are  no  mhcr  pas- 
sengers, the  company's  employes  owe  Idm  no  duty  until  tliey  have 
been  notified  of  his  intention  to  do  so;  and  he  cannot  recover  for 
injuries  sustained  by  the  starting  of  ti.e  train  wliile  alighting.  .\ieh  )Is 
V.  IJaihvay  Co.,  !)0  Midi.  liO.!.  .")1  .\.  W.  .8(j4. 

6  Missouri.  K.  A:  T.  Ky.  Co.  v.  Ivendrlck  (Tex.  Civ.  .\pp.i  :;_'  S.   \V. 

(7G1) 


§  oOl  CARRIERS  OF  PASSENGERS.  (Ch.  2S 

But  where  a  passenger  retires  for  the  night  on  a 
steamer  or  in  a  sleeping  ear  a  different  rule  prevails. 
The  obligation  to  awaken  and  notify  the  passenger  in 
time  for  him  to  prepare  to  safely  and  conveniently 
leave  the  train  at  the  point  of  his  destination  is  di- 
rectly involved  in  the  contract  for  the  sale  of  a  sleep- 
ing berth.*'  So,  the  owner  of  a  Mississippi  river  steam- 
er, the  custom  on  which  is  to  notify  passengers  when 
their  landing  places  are  reached,  is  liable  for  the  neg- 
ligence of  its  clerk  in  directing  a  female  passenger,  who 
has  placed  herself  in  his  care,  to  disembark  at  night  at 
the  wrong  landing.' 

42;  XuDU  V.  Railroad,  71  Ga.  710.  Nor  does  the  fact  that  the  passen- 
ger was  caring  for  a  sick  child  alter  the  case,  unless  the  conductor 
knew  of  it  when  he  made  the  promise.  Chicago.  R.  I.  &  T.  R.  Co. 
V.  Boyles  (Tex.  Civ.  App.)  38  S.  W.  247.  A  railroad  company  is  not 
responsible  for  carrying  a  seven  year  old  boy  past  his  destination, 
where  the  name  of  the  station  was  called,  and  the  boy  was  safely  re- 
turned the  same  night.  The  fact  that  the  conductor,  on  arrival  of  the 
train  at  the  boy's  destination,  replied  in  the  negative  when  the  boy's 
father  asked  if  he  had  a  little  boy  on  the  train,  does  nor  make  the 
company  liable.     Gage  v.  Railroad  Co.  (Miss.)  21  South.  U.'>7. 

6  Pullman  Palace-Car  Co.  v.  Smith,  79  Tex.  468,  14  S.  W.  993.  It  is 
the  duty  of  a  railroad  company,  which  sells  a  passenger  a  ticket  on 
its  line  of  road,  and  a  sleeping-car  ticket  to  an  intermediate  point, 
where  the  pa&senger  is  re(iuired  to  change  cars,  to  awaken  her  a  suffi- 
cient time  before  reaching  such  point  to  allow  an  opportunity  to  dross 
and  prepare  to  make  the  change  in  a  suitable  and  decent  condition. 
:MeKeon  v.  Railway  Co.  (Wis.)  69  N.  W.  175. 

7  Carson  v.  Leathers,  57  Miss.  650. 

(762) 


Ch.   23)  DUTY    OF    PU^■CTUALITY.  §    302 

§  302.     REGULATIONS  AS  TO  STOPPING  PLACES 

FOR  TRAINS. 

The  law  seems  to  be  well  settled  that,  when  a  railroad 
conipau}'  sells  a  ticket  from  oue  point  to  another  on  its 
own  line,  it  simply  engages  to  carr}-  the  passenger  to 
his  destination  in  the  cnstomarv  wav,  accordiuii-  to 
such  reasonable  rules  and  regulations  as  it  has  adopted 
for  the  running  of  its  trains.  In  the  absence  of  a  spe- 
cial contract  to  that  effect,  a  passenger  has  no  right  to 
require  a  train  to  stop  at  a  particular  station,  where, 
according  to  the  rules  of  the  companj^,  it  is  not  sched- 
uled to  stop,  and  does  not  ordinarily  stop.  Kailroad 
■companies  are  bound,  of  course,  to  make  reasonable 
running  arrangements  for  the  accommodation  of  the 
traveling  public;  but  that  does  not  mean  that  all  pas- 
senger trains  must  stoj)  at  all  stations,  or  that  trains 
must  be  so  scheduled  and  run  as  to  enable  each  pas- 
senger to  make  a  continuous  trip.  So  long  as  a  rail- 
road company  furnishes  reasonable  facilities  for  reach- 
ing all  stations  on  its  line,  passengers  who  desire  to 
reach  a  particular  station  should  take  trains  that  us- 
ually carry  passengers  to  that  place.^  "To  alU)w  the 
caprice,  or  the  wish,  or  even  the  seeming  necessity,  of 
an  individual,  to  procure  stoppage  of  trains  at  unac- 
customed points,  and  to  disarrange  the  schedule  hxcd 
for  their  predetermined  and  regular  movement,  would 

§  302.  1  Atchison,  T.  &  S.  F.  R.  Co.  v.  Cainerou,  14  C.  C.  A.  3r>S, 
r,(;  Fed.  700;  Texas  &  1'.  Ry.  Co.  v.  Lndlani.  U  C.  (".  A.  ITA,  .".7  l^'d. 
4S1;  Plott  V.  Railway  Co.,  C^  Wis.  .'')11,  23  N.  W.  412;  l.o^'aii  v.  Rail- 
road Co.,  77  Mo.  003;  Louisville  &  N.  R.  Co.  v.  Miles  (Ky.)  37  S.  W. 
486. 

(703) 


§  302  CARRIERS  OF  PASSENGERS.  (Cll.  2 


'^3 


be  to  permit,  not  only  vast  property  interests,  but  hu- 
man lives  as  well,  to  be  certainly  and  recklessly  put 
in  peril."  -  The  purchase  of  a  ticket  gives  the  pas- 
senger no  right  to  be  carried  on  the  next  passenger 
train  leaving  that  station,  if,  according  to  the  public 
running  arrangements  of  the  road,  that  train  is  not 
scheduled  to  stop  at  his  destination,  and  there  are  other 
passenger  trains,  running  at  reasonable  intervals, 
which  do  stop  there. ^  The  words  on  a  railroad  ticket, 
"Good  on  passenger  trains  only,"  do  not  impose  any 
obligation  on  the  company  to  carry  the  holder  on  a  pas- 
senger train  that  does  not,  in  accordance  with  the 
public  running  arrangements  of  the  company,  stop 
at  the  place  named.  These  words  are  merely  intended 
to  prevent  any  implication  that  the  company  is  bound 
to  carry  the  holder  on  freight  trains,  or  anything  but 
passenger  trains.*  So  the  mere  fact  that  a  train  is 
compelled  to  stop,  and  does  stop,  on  a  railroad  crossing 
near  a  passenger's  destination,  does  not  give  the  pas- 
senger any  right  to  go  on  a  train  which  does  not,  ac- 

2  Wells  V.  Railroad  Co.,  67  Miss.  24,  6South.  737. 

3  rittsburgh.  C.  iV-  St.  L.  Ry.  Co.  v.  Nuzum.  50  Ind.  141;  Plott  v. 
Railway  Co.,  03  ^\■is.  511.  23  N.  AV.  412;  Duliiig  v.  Railroad  Co..  (i(> 
Md.  120,  6  Atl.  592.  A  passenger  cannot  complaiu  of  the  failure  of 
the  company  to  stop  the  train  at  a  point  five  miles  from  tlie  destina- 
tion mentioned  in  his  ticket,  where  such  point  is  not  a  regular  station 
or  stopping  place  for  receiving  or  discharging  passengers.  Beau- 
champ  V.  Railroad  Co..  56  Tex.  231).  The  refusal  of  a  railroad  com- 
pany to  designate,  as  a  flag  station  for  its  through  trains,  a  place 
which  is  not  an  iucorpoiated  town,  which  contains  only  a  few  houses, 
and  is  situated  within  three  miles  of  a  regular  station,  is  not  an 
unreasonable  regulation.  St.  Louis,  J.  M.  &  S.  Ry.  Co.  v.  Adcock,  52 
Ark.  406,  12  S.  AV.  874. 

4  Ohio  &  M.  Ry.  Co.  v.  Swarthout,  07  Ind.  507. 

(704) 


Ch.    23)  DUTY    OF    PUNCTUALITY.  §    302 

cording  to  its  public  riiiiniiig  arrangemeuts,  stop  at 
that  station.^  So,  of  course,  a  passenger  wiio  knows  a 
train  to  be  a  special,  going  through  to  a  certain  sta- 
tion, has  no  right  of  action  against  the  (•oni])an.v  for  its 
refusal  to  stop  the  train  at  an  intermediate  station, — 
his  destination.*^ 

With  respect  to  freight  trains,  the  rule  applies  with 
still  greater  force.  Freight  trains  do  not  generally 
transport  passengers;  and,  when  they  do,  it  is  by  per- 
mission of  the  railroad's  management,  and,  when  the 
permission  is  granted,  it  may  be  done  Avith  any  rea- 
sonable limitations  the  maimgement  may  imposi^  A 
regulation  forbidding  the  transportation  of  passen- 
gers on  freight  trains  beyond  a  certain  station  is  yalid.^ 

But  the  power  of  a  railroad  company  to  make  and 
enforce  a  regulation  that  one  or  more  passenger  trains 
on  its  road  shall  not  stop  at  specified  stations  is  sub- 
ject to  legislative  control;  and  thi*^  railroad  company 
is  bound  to  observe  a  statute  requiring  all  passenger 
trains  to  stop  at  places  containing  more  than  3,000 
inhabitants.* 

5  Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v.  Li^'litcap.  7  Ind.  App.  249,  34 
N.  E.  248. 

0  Missouri.  K.  ^  T.  Ky.  Co.  v.  Byas,  0  Te.\.  Civ.  App.  .")T2,  29  S.  W. 

1122. 

-  Soutli  lie  N.  A.  R.  Co.  V.  Iluffiiian.  7<i  Ala.  4iil2. 

8  Pennsylvania  Co.  v.  Went/.,  ;{7  (»lii(>  St.  SMI  A  statute  requiring 
trains  to  stop  at  junction  points  witli  otlicr  railroads  can  he  involved 
against  the  company  only  by  passengers  desiring  to  niak«'  the  traiisler 
to  the  other  road,  and  not  by  a  passenger  whose  destination  is  the 
junction  i)oinl,  and  who  talces  a  train  not  scheduled  to  stop  there. 
Logan  V.  Railroad  Co.,  77  -Mo.  U»j3. 

(705) 


§  303  CARRIERS  OF  PASSENGERS.  (Ch.  23 

§  303.     SAME— PASSENGER'S    DUTY    TO    KNOW 
REGULATIONS. 

It  is  the  duty  of  a  passenger,  before  taking  passage 
on  a  train,  to  ascertain  whetlier  it  stops  at  his  destina- 
tion, according  to  the  public  running  arrangements  of 
the  company/  Persons  desiring  ticlvets  of  travel  are 
expected  to  inform  themselves  as  to  the  train  they  wish 
to  take,  and  must  take,  for  their  destination.  If  they 
do  not  understand  or  see  the  schedules  or  time-tables 
provided  by  the  company,  it  is  their  duty  in  law  to  in- 
quire and  learn  what  train  they  should  take  to  reach 
the  point  they  wish;  and  if  a  mistake  is  made,  not  in- 
duced by  tlie  railroad  company,  against  which  ordinary 
diligence  as  to  inquiry  would  have  protected,  no  re- 
dress against  the  company  will  be  accorded.^ 

§  303.  1  Ohio  &  M.  R..Co.  v.  Ilatton,  60  Iml.  12;  Ohio  &  M.  Ry. 
Co.  V.  Applewhite,  -52  lud.  540;  Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v. 
Lightcap,  7  Ind.  Api^.  24!t,  34  X.  E.  245;  Dietrich  v.  Railroad  Co.,  71 
Pa.  St.  432;  Caldwell  v.  Railroad  Co.,  8  Pa.  Co.  Ct.  R.  467:  Atchison, 
T.  &  S.  F.  R.  Co.  V.  Gaats,  38  Kan.  608,  17  Pac.  54;  McRae  v.  Rail- 
road Co..  88  N.  C.  .526;    Noble  v.  Railroad  Co.  (Okl.)  46  Pac.  483. 

2  Duling  V.  Railroad  Co.,  66  Md.  120,  6  Atl.  592.  A  ticket  is  subject 
to  the  regulations  of  the  company  designating  the  passenger  trains 
that  are  to  stop  at  the  station  of  destination,  provided  the  passenger- 
has  notice  of  the  schedule  regulations,  or  such  publicity  has  been 
given  them  in  the  ticket  oftice  of  the  company,  and  by  posters  in  the 
cars,  that  a  person  of  ordinary  intelligence,  by  the  use  of  reasonable 
care  and  caution,  would  or  might  obtain  all  requisite  information  as 
to  the  matters  involved.  Trotlinger  v.  Railroad  Co.,  11  Lea  (Tenu.) 
533. 

(766) 


Oh.   23)  DUTY    OF    PUNCTUALITY.  §    ^^^ 

^  304.     SAME— RIGHTS  AND  DUTIES  OF  PASSENGER 

ON  WRONG  TRAIN. 

A  passenger  who  gets  on  a  train  which  he  knows 
does  not  stop  at  the  station  nanunl  in  his  ticlcet  lias 
nevertheless  the  right  to  travel  on  that  train  and  on 
that  ticket  to  any  intermediate  station  at  wliicli,  by 
the  regulations  of  the  company,  the  train  regularly 
stops.  And  the  conductor,  after  being  notitied  of  the 
passenger's  desire  to  get  oft'  at  such  intermediate  sta- 
tion, has  no  right  to  eject  him  from  the  train/  It  has 
even  been  held  that  such  a  passenger,  win.  gets  oft  at 
a  preceding  station,  has  the  right  to  complete  his  jour- 
ney by  taking  the  next  train  which  does  stou  at,  his 
station,  without  paying  an  extra  fare.' 

But  the  mere  failure  of  the  conductor  to  inform  such 
a  passenger,  at  the  lirst  opportunity,  that  the  train 

§  304.    1  Richmond,  F.  &  P.  R.  Co.  v.  Asl.by.  79  Va.  130.     In  Balti- 
more &  O.  R.  Co.  V.  Xorris  (In.l.  Apr.)  40  X.  K.  .",4.  it  was  bokl  that 
one  who  gets  on  a  train  without  a  ticket,  and  without  Imow'-edjie  that 
the  train  does  not  stop  at  the  station  to  which  he  wislies  to  go.  is  en- 
titled to  remain  on  the  train  as  a  passenger,  to  the  first  regular  stop- 
ping station,  on  paying  his  fare  to  that  place.     But  in  International 
&  (J.  N.  Ry.  Co.  V.  Has.-ell.  02  Tex.  2:)G.  it  was  held  that  the  company 
has  the  right  to  correct  such  a  passenger's  mistake  at  any  regular 
stopping  place  of  the  train;    and  if,  being  informed  of  his  mistake, 
after  being  afforded  an  opportunity  to  quit  the  train  at  a  regular  stop- 
ping station,  and  wait  for  the  proper  train,  he  refuses  t*.  do  s...  the 
conductor  may  put  hin.  off  in  a  proper  manner.     The  principle  la.d 
down  in  the  Virginia  cas.,  as  stated  in  the  text.  Is.  however,  so  clearly 
just  that  it  would  not  seem  to  be  open  to  dispute. 

2  Kollett  V.  Bailroad  Co.,  22  Mo.  App.  :{:.0.     This  decision,  however. 
is  questionable,  because  a  pas^.nger  has  no  right  to  b.vaU  \n-  jnm- 

ney.     See  ante,  §  2'Jl. 

(7<;7) 


§    305  CARRIERS   OF   PASSENGERS.  (Cb.   2?> 

does  not  stop  at  bis  destination,  so  that  he  can  exer- 
cise the  right  to  leave  at  any  station  he  chooses,  be- 
fore reaching  his  destination,  is  not  a  breach  of  the 
company's  obligation,  so  as  to  render  it  liable  for  dam- 
ages snstained  by  the  passenger  in  consequence  of  his 
being  put  off  at  the  station  preceding  his  destination, 
where  he  was  subjected  to  great  inconvenience  and 
exposure.^  A  passenger  who  holds  a  ticket  for  a  sta- 
tion at  which  the  train  does  not  stop  may  be  ejected 
at  the  preceding  station,  if  he  refuses  to  pay  fare  to 
the  first  succeeding  station  at  which  the  train  is  sched- 
uled to  stop/ 

g  305.     SAME— REPRESENTATIONS  OF  TICKET 

AGENT. 

A  railway  passenger  has  the  right  to  rely  on  a  ticket 
agent's  statement  that  a  particular  train  will  stop  at 
his  destination,  where  he  has  no  information  to  the 
contrary.^      The  ticket  agent  is  the  proper  person  of 

3  Texas  «&  P.  Ry.  Co.  v.  Liullam,  6  C.  C.  A.  454.  .57  Fed.  481;  s.  c. 
2  C.  C.  A.  633,  52  Fed.  1)4.  A  passenger  waives  his  riglit  of  action 
against  a  railroad  company  for  its  refusal  to  cairy  him  to  his  destina- 
tion, where,  after  being  informed  that  the  train  will  not  go  through 
to  his  destination,  he  leaves  the  car  at  a  station  a  few  miles  from  that 
point,  and  voluntarily  receives  back  the  fare  for  the  incompleted  por- 
tion of  his  journey.  Florida  South.  R.  Co,  v.  Katz,  23  Fla.  139,  1 
South.  473. 

4  Logan  V.  Railroad  Co.,  77  Mo.  G(j3;  Fink  v.  Railroad  Co.,  4  Lans,. 
(N.  Y.)  147;  Allen  v.  Railroad  Co.,  119  N.  C.  710,  25  S.  E.  787;  Noble 
v.  Railroad  Co.  (Okl.)  4(i  Fac.  483. 

§  305.  1  Lake  Shore  i*;:  M.  S.  R.  Co.  v.  Pierce.  47  Mich.  277,  11  X. 
W.  157;  Central  IJailroad  &  Banking  Co.  v.  Roberts,  91  Ga.  513.  18  S. 
E.  315;  Pittsburgh.  C.  &  St.  L.  Ry.  Co.  v.  Nuzum,  50  Ind.  141;  Ala- 
bama (i.  S.  R.  Co.  V.  Heddleston,  82  Ala.  218,  3  South.  53.      But  in 

(7G8) 


Ch.   23)  DUTY    OF   PUNCTUALUY.  §    305 

whom  to  iiiqnire,  wlieu  purchnsing-  tlio  ticket,  as  lo 
the  places  at  which  the  traiu  will  stop,  and  the  ticket 
ajient's  representatious  are  biiuliuii  on  the  company. 
A  passenger  who  purchases  a  ticket  good  on  all  trains, 
and  who  is  informed  by  the  station  agent  tliai  a  train 
he  desires  to  take  will  stop  at  his  destination,  may  rc- 
covpr  damages  from  the  railroad  company  for  the  con 
ductor's  refusal  to  carry  him  to  that  station,  though, 
owing  to  the  failure  of  the  railway  oflicials  to  inform 
the  conductor  of  a  change  in  the  running  arrange- 
ments, the  conductor  believes  that  his  train  is  not  au- 
thorized to  stop  at  that  station." 

But  statements  of  a  ticket  agent  that  a  certain  train 
stops  at  a  certain  station  will  bind  the  railroad  com- 
pany only  when  made  contemporaneously  with  the 
sale  of  a  ticket,  and  not  when  made  several  weeks  be- 
fore, and  not  referred  to  at  the  time  when  the  ticket 

was  sold.^ 

So,  an  inquiry  of  a  ticket  agent  when  the  next  train  is 
due,  and  the  purchase  of  a  ticket,  do  not  amount  to  an 
agreement  that  the  train  will  stop  at  the  destination 
named  in  the  ticket,  at  which  the  train  is  not  scheduled 
to  stop.^      So,  if  an  announcement  is  nmde  by  the  con 

Pittsburgb,  C.  &  St.  L.  Ry.  Co.  v.  Nuzum,  (W  Iml.  o6:\,  it  was  Held  that 
the  ticket  agent  could  not  bind  the  coini.any  by  sudi  a  statement. 

.  Sheets  V.  Kaihoad  Co.,  39  W.  \a.  47:..  20  S.  E.  Mr,  Where  a  pas- 
senger has  been  misdirected  by  a  ticket  agent,  a  petition  in  an  a.t.uu 
for  carrying  her  past  her  destination  should  count  on  the  negligent 
misdirection,  and  not  on  the  act  of  the  conductor  in  refusing  t..  stop 
the  train  at  her  destination.     Marsliall  v.  Railway  Co..  7S  Mo.  ..It.. 

r.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Cameron,  l-l  0.  C.  A.  ^i-^S.  OG  Fed. 

7()!l. 

4  Xol)le  V.  Kaih.iai!  Co.  (Okl.)  4f,  I'ac.  4S3. 

V.ln:T.CAlM-AS.-ll»  ('^'^'^) 


§  306  CARRIERS  OF  PASSENGERS.  (Ch.  23 

ductor  during  the  journey  that  a  change  of  cars  is  nec- 
essarj',  and  the  passenger  hears  it,  he  can  no  hunger 
rely  on  the  ticket  agent's  assurance  that  the  train  will 
carry  him  through  without  change  of  cars,  but  he  must 
make  further  inquiry;  and,  if  he  fails  to  do  so.  he  has 
no  right  of  action  against  the  company  for  not  being 
carried  to  his  destination.^ 

§  306.     SAME— WAIVER  BY  CONDUCTOR. 

The  conductor  has  no  power  to  agree  with  a  pas- 
senger to  stop  the  train  and  let  him  oft"  at  a  station 
at  which  it  is  not  to  stop  by  its  public  running  arrange- 
ments. "The  duty  of  a  conductor  is  to  run  the  train 
according  to  the  public  arrangements,  and  he  has  no 
power  to  change  them;  and  a  passenger  has  no  right 
to  infer  that  a  conductor  has  any  such  power  from  his 
general  duties  as  a  conductor,  and  no  reason  to  sup- 

5  Dye  V.  Railroad  Co.,  20  D.  C.  6:J.  A  ticket  agent  pointed  out  a 
train  to  a  passenger  as  one  that  would  cf^rry  him  to  Lyons.  That 
train,  running  150  miles,  deflected  to  a  branch  road  not  passing 
through  Lyons,  but  was  followed  an  hoiu-  afterwards  by  another  train, 
which  passed  through  Lyons.  Held,  that  the  passenger  was  in  fault 
for  being  miscarried  if,  at  or  before  reacliing  the  point  of  divergence, 
the  carrier  used  such  means  as  would  have  conveyed  to  a  traveler  of 
ordinary  intelligence,  using  reasonable  care  and  attention,  informa- 
tion of  the  necessity  of  his  transferring  himself  to  the  second  train. 
Barker  v.  Railroad  Co.,  24  N.  Y.  591».  A  passenger  who  takes  a 
train  which,  by  tlu'  rules  of  the  company,  does  not  stop  at  her  des- 
tination, has  no  right  of  action  against  the  company  for  being  set 
down  at  the  nearest  station  to  her  destination  where  the  train  does 
stop,  though  she  took  the  train  under  the  direction  of  an  agent  of  the 
company  who  had  no  authority  to  direct  passengers.  Sira  v.  Railroad 
Co.,  115  Mo.  127,  21  S.  W.  905. 
(770) 


Ch.   23)  .  DUTY    OF    PUNCTUALITY.  §    306 

pose  that  lie  could  bind  the  railroad  company  by  any 
such  agreement."  ^  A  passenger  who  goes  on  a  train, 
without  a  ticket,  knowing  that  such  train  is  not  sched- 
uled to  stop  at  her  destination,  under  an  agreement 
with  the  conductor  that  he  will  violate  the  ccMii])any's 
rules  and  stop  at  her  destination,  cannot  maintain  ;in 
action  against  the  company  for  the  conductor's  viola- 
tion of  his  agreement,  in  carrying  her  several  miles 
beyond  her  destination,  and  there  putting  her  oif  in 
the  nighttime  at  a  distance  from  any  residence.^  But 
if  the  conductor  of  a  fast  ti'ain  receives  fare  from  a  pas- 
senger to  a  station  at  which  such  train  is  not  sched- 
uled to  stop,  it  becomes  his  duty  to  notify  the  passen- 
ger that  tlie  train  does  not  stop  at  that  station,  or  to 
carry  him  to  that  station,  and  give  him  an  opportunity 
to  get  off  in  safety.^  So,  where  a  passenger  gets  on  a 
train  at  a  junction  point,  and,  before  it  starts,  inquires 
of  the  conductor  whether  she  is  on  the  right  train,  it 
is  his  dutv  to  inform  himself  of  her  destination,  and  it 
is  no  excuse  for  him  to  sav  that  she  did  not  show  him 
the  ticket,  and  that,  therefore,  he  could  not  tell  where 
she  wanted  to  go  when  he  directed  her  to  remain  on 
the  train/ 

But  the  act  of  a  conductor  in  taking  np  and  punch- 
ing a  passenger's  ticket  for  a  station  at  which  the  train 
is  not  scheduled  to  stop  is  not  a  waiver  cil'  the  rcgnla- 
tion,  where  he  expressly  informs  the  passenger  that 

§  306.    1  Ohio  &  M.  Ry.  Co.  v.  flattou,  GO  Incl.  12. 

2  Alabama  G.  S.  R.  Co.  v.  Cannicliacl.  <.)0  .\la.  V.).  8  SoxKli.  87. 

8  MtXulta  V.  Ensoh,  i;j4  111.  4r,,  24  N.  E.  031;    s.  c.  31  111.  Aijp.  100. 

*  luteriiatioiial  &  G.  X.  Ry.  Co.  v.  Gilbert,  04  Tex.  530. 

(771) 


§  307         ,      CARRIERS  OF  PASSENGERS.  (Ch.  2'6 

the  train  will  not  stop  tliere,^  or  that  it  is  doubtful 
whether  it  will.*^ 


§  307.     SAME— WAIVER  BY  CUSTOM. 

A  custom  to  stop  a  train  at  a  station  at  which  it  is 
not  scheduled  to  stop  is  a  waiver  of  the  regulation.^ 
The  frequent  stopping  of  a  train,  by  the  conductor, 
at  a  place  not  a  station,  to  receive  and  discharge  pas- 
sengers, must  be  deemed  to  have  been  done  in  the  ex- 
ercise of  power  conferred  by  the  principal,  so  far  as 
the  traveling  public  is  concerned,  though  in  fact  the 
principal  may  have  forbidden  the  act.  In  such  mat- 
ters, the  frequent  exercise  of  power,  which,  from  its 
nature,  must  have  been  known  to  the  principal,  may 
be  regarded  by  persons  dealing  with  the  agent  as  suffi- 
cient evidence  of  the  power  which  the  agent  assumes 
to  exercise."  Proof  that  the  train  sometimes  stojjs  at 
a  station  at  which  it  is  not  scheduled  to  stop  places 
the  burden  on  the  company  to  show  that  such  stops 
were  exceptional  and  under  special  instructions.^  So, 
though  one  knows  that  a  certain  fast  passenger  train, 
as  a  rule,  does  not  stop  at  the  station  of  his  residence, 
yet,  if  there  is  a  custom  for  such  train  to  stop  there 
for  the  accommodation  of  passengers  holding  tickets 
purchased  from  connecting  railroads  in  other  states, 
he  may  avail  himself  of  this  custom  by  purchasing 

B  Trotlinger  v.  Railroad  Co.,  11  Lea  (Teun.)  533. 
6  Chicago  «&  A.  U.  Co.  v.  Randolph,  .53  111.  511. 

§  307.    1  Texas  &  P.  Ry.  Co.  v.  Ludlaui.  G  C.  C.  A.  454,  57  Fed.  491. 
2  Hull  V.  Railroad  Co.,  GG  Tex.  G19.  2  S.  W.  8^1. 
8  Sira  V.  Railroad  Co..  115  Mo.  127.  21  S.  W.  !ti>.5. 
(772) 


Ch.   23)  DUTY   OF    PUNCTUALITY.  §  C07 

siieh  a  ticket  in  another  state.*  It  has  even  bc^n  liold 
that  a  passenger  holding  a  ticket  for  a  station  at  wliich 
the  train  is  accustomed  to  stop  may  recover  for  luring 
carried  past  his  destination,  tljoii^li  toM  by  tlic  con- 
ductor, when  he  took  passage,  tliat  the  train  would  not 
stop  at  that  station  on  that  trip. 


6 


4  Humphries  v.  Railroad  Co.,  70  Miss.  453,  12  South.  155.  A  cus- 
tom of  a  railroad  company  to  receive  and  discharge  passengers  at  a 
certain  platform  in  a  town  authorizes  passengei-s  for  that  town  to 
presume  that  the  railway  company's  contract  of  carriage  is  to  deliver 
them  at  that  point,  though  the  platform  may  not  he  owned  or  con- 
structed by  the  company.  The  customary  use,  and  not  the  owner- 
ship, of  it  would  be  the  controlling  fact  from  which  an  implied  con- 
tract to  that  effect  is  raised.  Louisville  iV:  X.  U.  Co.  v.  Johnston,  79 
Ala.  436. 

5  Chicago,  R.  I.  <fc  P.  R.  Co.  v.  Fisher,  60  111.  152.  Whore  the 
custom  of  trains  to  stop  at  a  station  misleads  a  person,  without  fault 
on  his  part,  into  the  belief  that  it  is  a  flag  station,  and,  relying  on 
that  custom,  he  purchases  a  round-trip  ticket  to  that  place  from  an 
agent  of  the  railway  company,  who  knows  his  intention  to  use  it.  in 
returning,  on  a  train  which  does  not  stop  at  that  point,  and  yet  fails 
to  inform  him  of  that  fact,  the  company  will  be  liable  for  the  failure 
of  the  train  to  stop  when  properly  flagged.  St.  Ix>uis,  I.  M.  &  S.  Ry. 
Co.  V.  Adcock.  52  Ark.  406,  12  S.  W.  874.  A  passenger  cannot  com- 
plain of  a  railroad  company's  refusal  to  put  her  off  at  a  flag  station 
short  of  her  destination,  although  she  had  previously  been  permitted 
to  get  on  and  off  at  such  station,  there  being  no  allegation  that  ii  was 
ever  the  custom  of  the  company  to  so  accommotlate  passengers. 
Matthews  v.  Railway  Co.,  38  S.  C.  429,  17  S.  E.  225.  A  custoiii  ob- 
taining among  conductors  not  to  stop  a  train  at  one  of  its  schedule<l 
stations  is  no  defense  to  an  ac-ticii  liy  a  passenger  for  being  carried 
past  that  station,  if  she  had  no  knowledge  of  the  custom.  Ix)uisvllle 
&  N.  R.  Co.  V.  Cayce  (Ky.)  34  S.  W.  896. 

(773) 


§  303  CARRIERS  OF  PASSENGERS.  (Ch.  23 


§  308.     REGULATIONS     RESTRICTING     TICKETS     TO 
PARTICULAR  TRAINS. 

A  rule  of  a  railroad  company  that  a  ticket,  sold  at 
less  than  full  fare,  shall  not  be  good  on  its  limited  ex- 
X)ress  trains,  is  reasonable  and  valid.  Though  not  ex- 
pressed on  the  ticket,  it  is  the  passenger's  duty  to  as- 
certain whether  his  ticket  entitles  him  to  ride  on  that 
train;  and,  if  he  goes  on  the  train  without  a  proper 
ticket,  the  company  has  a  right  to  eject  him  at  a  safe 
place,  using  no  more  force  than  necessary.^  But  in 
Massachusetts  it  has  been  held  that,  where  a  railroad 
company  sells  a  ticket  purporting  to  entitle  the  pur- 
chaser to  passage  on  any  of  its  regular  trains,  a  rule  of 
the  company  restricting  the  holder  of  such  a  ticket  to 
a  special  class  of  trains  does  not  justify  his  exi^ulsiou 
from  a  regular  train,  unless  he  had  notice  of  the  rule 
when  he  purchased  the  ticket."     The  purchaser  of  a 

§  308.  1  Lake  Shore  &  M.  S.  K.  Co.  v.  Rosenzweig,  113  Pa.  St.  .519, 
537,  6  Atl.  545;  Dietrich  v.  Railroad  Co.,  71  Pa.  St.  432.  In  the 
first  case  above  cited,  however,  it  was  held  that  the  passenger,  igno- 
rant of  the  rule,  was  not  a  trespasser  whom  the  company  could  eject 
at  a  dangerous  place,  but  only  at  a  regular  station  or  a  dwelling 
house.  A  rule  that  a  purchaser  of  an  excursion  ticket,  sold  at  a  re- 
duced rate,  shall  travel  on  the  train  provided  for  that  special  pur- 
pose, and  not  upon  a  regular  train,  is  a  reasonable  regulation.  Mc- 
Rae  V.  Railroad  Co.,  88  N.  C.  52(5. 

2  Maroney  v.  Railway  Co.,  106  Mass.  153.  A  railroad  company 
which  has  chartered  one  of  its  trains  for  an  excursion  is  liable  for 
the  act  of  its  conductor  and  the  person  representing  the  charterer 
in  ejecting  from  the  car  a  person  who  had  purcha-sed  a  regular  ticket 
entitling  him  to  ride  between  the  stations  covered  by  the  trip,  and 
who  entered  the  car  in  good  faith,  without  notice  of  the  fact  that  the 
train  was  a  special  one.      Martin  v.  Railroad  Co.,  1  N.  Y.  St.  Rep.  738. 

(774) 


Ch.    23)  DUTY    OF    PUNCTl'ALITY.  §    309 

first-class  ticket  is  not  entitled  to  be  tarncd  on  ;i  li-ci^lit 
train,  Avliere  the  rules  of  the  conipaiiv  iiMniir.'  prrsons 
desirinji  to  ride  on  freight,  trains  to  piirrhasr  tickets 
expressly  for  sucli  trains,  11"  the  hiw  reiiuircd  rail- 
road companies  to  carry  passengers  on  freiiilit  trains, 
then  a  different  rule  would  applv;  but,  it  beinu  a  mat- 
ter of  choice  with  them,  they  may  impose  reasonable 
terms,  provided  the  rule  is  uniform.^ 

Such  a  regulation  may,  however,  be  waived  by  tin* 
conduct  and  the.  representations  of  the  railroad  t-ni- 
ployc^s.  Thus,  where  a  conductor  of  a  freiuht  tiaiii 
informs  a  passenger  that  he  may  change  cars,  and  gvt 
on  board  of  a  fast  express  train,  at  an  intermcMllntc 
station,  and  assures  him  that  the  conductor's  check 
in  his  possession  will  secure  him  transportaticui  on  that 
train,  the  company  is  liable  for  Ids  ejection  from  the 
express  train,  though  under  the  rules  of  the  company 
the  passenger  was  not  entitled  to  ride  on  the  express 
train.* 

§  309.     RESTRICTION    AS    TO  TRAIN  IN    TICKET. 

A  condition  in  a  ticket  that  it  shall  not  be  good  on 
specified  trains  is  valid  and  binding  on  the  purchaser, 
especially   where  it   is   sold   at    less   than    lull    fare.' 

3  Illinois  Cent.  R.  Co.  v.  Nelson,  .v.*  111.  110. 

4  Toledo,  W.  it  W.  Ry.  Co.  v.  .MeDoiiouKli.  ">;{  Ind.  2S'». 

§  3011.  1  \\ils()ii  V.  Railroad  Co..  <>{  Miss.  .TiL':  Xol.iii  v.  Railroad 
Co.,  41  N.  Y.  Super.  Ct.  541.  A  condition  on  a  niilt'a;:t>  tlfiu-t  iliat  it 
shall  not  be  gocxl  for  passajje  on  froitrht  i rains  is  nut  w.-iivcd  t».v  a 
sub.secjuent  advertisement  that  pjisscnKcrs  witli  tiikets  may  ride  mi 
such  trains,  since  the  niileajje  ticket  is  luti  an  oniinar.v  litki't  evi- 
dencing an  unconditional  contract  for  carriage.  l>unlai»  v.  It.iilmad 
Co.,  3.">  -Minn.  203.  28  N.  W.  240. 

(TTT)) 


§  309  ■    CARRIERS  OF  PASSENGERS.  (Ch.  2'* 

Thus,  a  condition  in  a  stock  ticket,  that  it  is  good  only 
on  the  freight  train  on  which  the  stock  is  transported, 
is  valid,  and  the  ticket  is  not  good  for  passage  on  a 
reguhir  passenger  train. - 

But  by  issuing  a  round-trip  excursion  tickei:,  good  on 
several  specified  trains,  the  company  agrees  to  carry 
the  passenger  on  any  of  these  trains  he  may  select;  and 
where,  on  the  return  trip,  the  company  puts  him  off 
at  an  intermediate  station,  owing  to  the  dangerously 
crowded  condition  of  the  car,  it  must  make  compen- 
sation for  any  damages  he  has  thereby  sustained.^  So, 
the  fact  that  the  train  for  which  the  ticket  was  issued 
was  chartered  by  a  third  person,  and  that  he  broke 
his  contract  with  the  company,  will  not  justify  it  in 
exacting  an  additional  fare  from  the  passenger,  or  in 
unreasonably  delaying  the  transportation.* 

Like  all  other  conditions,  a  condition  restricting  the 
ticket  to  a  particular  train  maj  be  waived  by  the  rail- 
road company's  employes.  But  a  condition  restrict- 
ing a  ticket  to  passage  on  a  stock  train  is  not  waived 
by  the  fact  that  similar  tickets  had  been  previously 
received  by  defendant  for  passage  on  its  passenger 
trains.^  Xor  does  the  acceptance  of  coupons  for  fare 
on  a  ti*ain  for  which  the  ticket  is  not  good  debar  the 
company  from  enforcing  the  condition  on  a  subsequent 
occasion.** 

2  Thorp  y.  Railroad  Co..  61  Vt.  37S.  17  Atl.  71)1. 

3  Great  N.  Ry.  Co.  v.  Hawcroft  (lSo2)  21  Law  J.  Q.  B.  178. 

4  Eddy  V.  Harris,  78  Tex.  Cdl.  15  s.  W.  107. 

6  Thorp  V.  Raih-oad  Co.,  01  Vt.  378.  17  Atl.  791. 
6  New  York  &  N.  E.  R.  Co.  v.  Feely,  1G3  Mass.  205.  40  N.  E.  20. 
The  failure  of  a  train  of  the  first  carrier,  carrying  second-class  pas- 
(770) 


Ch.   23)  DUTY    OF    PUNCTUALITY.  §    3lO 

§  310.     RESTRICTION  AS  TO  ROUTE. 

Where  a  railroad  company  riins  and  operates  two 
railroads  between  two  poinft^, — one  a  pari  t»t'  ili<> 
tlirongh  ronte,  the  other  a  longer,  more  circuitous, 
way  route, — a  passeni^er  purchasinu  a  tlii-ouuli  tiekei 
is  entitled  to  traA'el  only  over  the  usual,  throu.uh,  and 
most  direct  route;  the  company  is  not  bound  to  carry 
him  over  the  circuitous  route.  When,  therefore,  the 
passen<;er  leaves  the  throui^h  train,  au«l  takes  one  ])ass- 
mg  over  the  way  route,  the  coni])any  may  demand  pay 
for  the  additional  mileaj^e  on  the  ^vay  route,  and,  on 
his  refusal  to  pay  it,  he  may  be  ejected.^  The  lac', 
that  a  through  passenger,  when  she  boarded  the  traiu» 
Avas  ignorant  of  a  regulation  requiring  ihrougli  i»as- 
sengers  to  take  the  direct  route,  and  that  no  iioiicc  <»r 
any  kind  was  given  her  until  it  was  too  late  for  liei* 
to  take  the  direct  route  Avithout  turning  back  on  her 
journey  and  losing  time,  does  not  entitle  Ikm-  to  a  pas- 
sage on  the  circuitous  route,  and  no  action  lies  against 
the  company  for  her  ejection  from  a  ti-ain  on  ilnit 
route."  But  in  a  recent  Canadian  case  it  was  hcM 
that  a  condition  in  a  raihvay  ticket  that  the  passen- 
ger shall  travel  "on  a  dire<t  line"  Avill  be  rejected  as 

sengors,  to  make  coimectiou  with  the  pmiicr  train  of  a  coiiiu'iiiii^'  roa  I. 
does  not  iiiiitose  any  obligation  on  the  connecting  carrier  to  nanspori 
a  passenger  holding  a  secon(l-cla>-s  tlirouirli  ticket  on  Us  next  train,— 
a  limited  express,— upon  wliii  h  such  tickets  are  not  vaiid.  New  Y<  rk. 
L.  E.  &  AV.  Ky.  Co.  v.  Kennctt.  1  C.  C.  A.  544,  .">(»  Fed.  I!m;. 

§  310.      1  Bennett  v.  Railroad  Co..  <'.!>  N.  Y.  .V.t4,  allirniiug  3  Ihiu, 
599;    Adwin  v.  Railroad  Co.,  CO  Barb.  (N.  Y.)  .'")9ii. 

2  Church  V.  Raihvay  Co.,  <i  S.  1>.  u;:.'p,  c.o  .\.  W.  s.-,i. 

(777) 


§  310  CARRIERS  OF  PASSENGERS.  (Ch.  23 

meaningless,  where  each  of  three  possible  routes  is  cir- 
cuitous, though  one  is  shorter  in  point  of  mileage  than 
the  others,  and  the  pasvsenger  may  make  his  journey  on 
any  one  of  the  three  roa^ls.^ 

»  Dancey  v.  Railroad  Co.,  19  Out.  App.  6G4,  affinning  20  Out.  0^3. 

(778) 


€h.  24)  EJECTION.  §  311 


CHAPTER  XXIV. 

EJECTION. 

i  311.  Right  to  Eject  Passenger. 

312.  Refusal  to  Pay  Fare,  or  to  Exhibit  or  Surrender  Ticket. 

31.!.  Same — Person  Accompanying  Passenger. 

314.  Same — Tender  of  Fare  after  Ejection  Begun. 

315.  Same— Riglit  to  Resume  Journey  after  Ejection. 
31G.  Same— Loss  of  Ticket  or  Faro. 

317.  Same— Mistake  as  to  Ticket  or  Fare. 

318.  Same— Demand  of  Excessive  Fare. 

319.  Same— Mistake  of  Gateman. 

320.  Same— Mistake  in  Taking  up  Tickets. 

321.  Same— Mistake  as  to  Time  Limit. 

322.  Same— Mistake  as  to  Trains. 

323.  Same— Mistalve  as  to  Round-Trip  and  Coupon  Ticket. s. 

324.  Same— Mistake  as  to  Street-Car  Fares. 

S2.5.  Same— Cases  Holding  Ticket  Conclusive  as  between  Conductor 

and  Passenger. 

32t).  Same— Right  to  Resist  Wrongful  Expulsion. 

327.  Disobedience  of  Rules. 

328.  Disorderly  Conduct. 

329.  Same— Intoxicated  Persons. 

330.  Same— Overt  Acts. 

331.  Same— Stattite  Authorizing  Ejection  or  Arrest. 

332.  Place  of  Ejection. 

333.  Same— Statutory  Requirements. 

334.  Mode  of  Ejection. 

335.  Same— Resistance  of  Passenger. 
536.  Same— Orders  and  Threats. 

337.  Same— Province  of  Court  and  Jury. 

3.3S.  Refunding  I'\are. 

339.  Duty  of  Ejected  Pas.scnger. 

(779) 


§  312  CARRIERS  OF  PASSENGERS.  (Cll.  24 

§  311.     RIGHT  TO  EJECT  PASSENGER. 

A  carrier  may  eject  a  passenger  from  its  vehicle — 

1.  For  refusal  to  pay  fare,  or  to  surrender  or  ex- 

hibit his  ticket. 

2.  For  a  -willful  violation  of  its  reasonable  rules. 

3.  For  disorderly  conduct. 

The  right  to  eject  a  passenger  is  a  sort  of  police  poAV- 
er,  which  the  carrier  must  have  a  right  to  exercise  in 
order  to  make  its  vehicles  fit  and  safe  places  for  the 
conveyance  of  passengers,  as  well  as  to  secure  to  the 
carrier  a  suitable  reward  for  its  services.  In  many 
states  this  right  has  been  secured  to  the  carrier  by  ex 
press  statute,  but  the  power  exists  at  common  law,  for 
the  public  good,  and  the  carrier's  protection.^ 

§  312.     REFUSAL  TO  PAY  FARE,  OR  TO  EXHIBIT  OR 
SURRENDER  TICKET. 

A  person  on  a  railroad  train,  who  has  refused  to  pay 
his  fare,  is  a  trespasser,  and  may  be  ejected  by  the 
railroad  company,  by  the  use  of  all  lawful  and  proper 
means.^     So,  a  passenger  without  a  ticket,  who  refuses 

§  ;^ll.      1  St.  Louis.  A.  A:  C.  R.  Co.  v.  Dalby.  1!)  111.  352. 

§  312.  1  O'Brien  v.  Railroad  Co.,  15  Gray  (Mass.)  20;  Stone  v. 
Raili-ofid  Co.,  47  Iowa,  82;  De  Lucas  v.  Railroad  Co.,  38  La.  Ann. 
930;  Shular  v.  Railway  Co.,  92  Mo.  339.  2  S.  W.  310;  Pickens  v. 
Railroad  Co.,  104  N.  C.  312,  10  S.  E.  nm:  Clark  v.  Railroad  Co..  91 
N,  C.  500;  Railroad  Co.  v.  Skillman.  39  Ohio  St.  444.  One  who  goes 
on  a  train,  not  with  the  intention  to  acquire  a  right  to  ride,  but  to 
compel  the  conductor  to  pass  him  on  a  void  ticket,  or  to  mal:e  a  suit 
for  damages,  is  not  a  passenger,  but  a  trespasser,  and  may  be  ejected 
as  such  on.  his  refusal  to  pay  fare.  Lillis  v.  Railway  Co.,  64  Mo. 
(780) 


Ch.  24)  EJECTION.  §  312 

to  pay  the  lii«;her  ti'ain  fai'e  lawfully  dciiuuulcil  hy  the 
conductor,  may  be  ejected. - 

A  rule  of  a  street-car  couipany  rcquiriug  passenu;ei*s 
to  deposit  their  fares  upou  euteriuy  the  rar  is  reason- 
able, and  the  refusal  of  a  passenger  to  couiply  with 
the  rule,  after  demand  therefor,  warrants  the  coui- 
pany in  evicting  him  from  the  car,  using  no  nioro  force 
than  is  necessary  for  that  purpose. '■ 

A  regulation  of  a  railroad  company  reipiiring  i>as- 
sengersto  exhibit  their  tickets  when  reipiested  so  to  do 
by  the  conductor,  and  directing  the  ejection  fnun  the 
cars  of  those  refusing  to  do  so,  is  reascniable  and  ])rop- 
er.  The  passenger  is  bound  to  conform  to  such  regu- 
lation, and  forfeitif;  his  right  to  be  carried  further  by 
his  refusal  to  comply  with  it.  The  fact  that  the  pas- 
senger has  once  exhibited  his  ticket  to  the  conductor 
does  not  excuse  his  failure  to  comply  with  an(>ther  re- 
quest for  its  exhibition,  where  the  train  has  meantime 
passed  a  station.^      But  a  passenger  who  has  paid  his 

404.  A  passengrer  who  is  asleep  when  the  tniin  readies  his  destiii.-i- 
lioii  is  not  entitled  to  a  free  transportation  to  the  next  station;  and. 
on  his  refusal  to  pay  fare  to  that  station,  he  may  be  ejected.  Texas 
Pac.  Ry.  Co.  v.  .lames,  82  Tex.  30G,  18  S.  W.  r>80. 

2  Moore  v.  Railroad  Co.,  38  S.  C.  1.  IG  S.  K.  7S1 :  .Tolinsun  v.  K.iil- 
road  Co.,  14  N.  Y.  Wkly.  Dig.  4!>5.  Under  a  by-law  of  a  radwny 
company  which  proliibits  any  passenger  from  t-nteriiig  a  carriiige  witii- 
out  first  having  paid  his  fare  and  uijiaincd  a  ticUet.  tlie  ((imiMiiy  is 
justified  in  expelUng  a  pas.senger  who,  wiUi  full  kiiowlcdu*'  of  tlie 
by-law,  goes  on  a  tniin  without  hrst  prixuriiig  .i  licUel.  McCiriiiy 
V.  Railway  Co.  (Ir.  Exch.)  18  Wkly.  Rep.  HV2. 

3  Nye  V.  Railroad  Co.,  07  Cal.  4(11.  :\-2  Tac  .'..".O:  Com.  v.  M.Ciiin 
(I'a.  C.  P.)  2!>  Leg.  Int.  124;  Bachmatm  v.  l{;iil\\.iy  Co.  d'.i.  C.  T.i  .\2 
Leg.  Int.  179. 

*  IIibl)ard  v.  RMilroiid  Co.,  IT.  N.  Y.   I.V..      .\  pas.siMigt'r  wlio  i.-fiises 

(781) 


§  312  CARRIERS  OF  PASSENGERS.  CCh.  '24 

fare  to  the  conductor  is  not  bound,  on  another  demand 
for  his  ticket,  made  10  minutes  later,  and  on  being  ac- 
cused by  the  conductor  of  lying,  and  with  not  having 
paid  his  fare,  to  produce  the  rebate  check  given  to  him 
by  the  conductor,  in  the  absence  of  any  request  by  the 
conductor  for  its  production.^ 

The  good  faith  or  honesty  of  a  passenger  in  believ- 
ing that  money  in  his  possession  is  sufficient  to  pay  his 
fare  is  immateiial  in  an  action  for  his  expulsion  for  his 
failure  to  tender  an  amount  suthcient  to  pay  it.®  So 
the  fact  that  a  person  attempting  to  ride  on  an  expired 
railroad  ticket  believed  in  good  faith  that  he  had  such 
right  can  in  no  way  affect  the  right  of  the  railroad  com- 
pany to  eject  him  from  the  train. '^ 

The  right  to  eject  a  passenger  for  nonpayment  of  fare 

to  comply  \^ith  a  reasonable"  regulation  of  the  company  as  to  the  sur- 
renrler  of  tickets  to  tlie  conductor  may  be  ejected.  People  v.  CaiTt 
3  Parker,  Cr.  R.  (>s.  Y.)  326.  The  fact  that  a  passenger's  baggage 
bas  been  injured  in  transportation  does  not  justify  his  refusal  to 
yield  up  his  ticket  when  demanded  by  the  conductor,  and  on  his 
refusal  so  to  do  he  may  be  ejected.  Havens  v.  Railroad  Co.,  28  Conn. 
69. 

5  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Goben,  15  Ind.  App.  123,  43  N. 
E.  890,  and  42  N.  E.  1116. 

6  Sage  V.  Railroad  Co..  134  Ind.  100.  33  N.  E.  771.- 

7  Rudy  V.  Railway  Co.,  8  Utah,  105,  30  Pae.  306.  One  who  goes 
on  a  railroad  train  with  a  ticket  issued  by  a  different  company,  and 
good  to  a  different  station  than  the  one  which  is  his  destination,  can- 
not ride  witliout  payment  of  fare,  tliouiih  he  may  have  believed  the 
ticket  to  be  good  when  he  boarded  the  train,  and,  on  his  refusal  to 
pay  fare,  he  may  be  ejected;  and  no  damages  can  be  recovered  for 
injuries  sustained  in  his  forcible  removal,  when  they  were  not  willfully 
inflicted,  when  improper  methods  were  not  used,  and  when  the  wrong- 
ful resistance  of  such  per.son  directly  contilbuted  to  the  injuries.  At- 
chison, T.  &  S.  F.  R.  Co.  V.  Brown,  2  Kan.  App.  604,  42  Pac.  588. 

(782) 


Uh.   24)  EJECTION.  §    313 

is  cduferved  ou  railroad  coiupanies  by  statute  in  many 
of  the  states.*'  lu  Massadnisetts  it  has  been  hchi  iliai 
a  statute  which  gives  railroad  companies  a  rii:hl  t(»  ar- 
rest persons  riding  on  their  trains  with  intent  to  evade 
payment  of  fare  does  not  prohibit  the  expulsion  of  a 
passenger  at  a  regular  station  for  nonpayment  of  fare, 
withont  arresting  him.* 


§  313.     SAME— PERSON  ACCOMPANYING 
PASSENGER. 

Payment  of  his  own  fare  by  a  parent  will  noi  enti- 
tle a  child  accompanying  him  to  nde  free,  wliei-.-,  \iii 
der  the  company's  rules,  a  child  of  her  age  is  reciuired 
to  pay  half  fare;  and,  whether  the  contract  of  car- 
riage be  considered  as  made  with  the  child  or  with  the 
parent,  the  child  may  be  put  off  the  train  for  nonpay- 

8  Mansf.  Dig.  Arlv.  §  5474;  Civ.  Code  Cal.  §  218S;  (li-n.  St.  Conn. 
18S8,  §  :J.-.41;  Couii).  Laws  Dak.  1887,  §  :!8!»7;  Kev.  St.  Fla.  1S!>-J.  §  2-Jii7; 
Rev.  St.  111.  c.  114,  par.  i)4;  Stair  &  C.  Ann.  St.  p.  l'.»44.  par.  04;  Rev.  Sr. 
Iml.  1894,  §  5181;  Rev.  St.  1881,  §  ^021;  Rev.  St.  Me.  1883.  p.  4-3.  c.  51, 
§  78;  1  How.  Ann.  St.  Mich.  §  3370;  Rev.  St.  Mo.  1S8  ».  §  2.-81 ;  Civ.Coile 
Mont.  1805,  §  2808;  Comp.  Laws  Neb.  1803.  p.  310.  S  I<i7;  Cen.  St. 
Nev.  1885,  §  883;  Comp.  Laws  N.  M.  1884,  §  2(;(i5,  snl.d.  13;  Hevislon 
N.  J.  p.  032,  §  113;  Laws  N.  Y.  18.-.(),  e.  140,  §  35;  Code  N.  C.  1883, 
§  1002;  rub.  St.  R.  I.  p.  400,  c.  158.  S  .-.2:  1  Kev.  St.  S.  C.  180.3.  § 
1732;  2  Comp.  l.-.ws  l^ah  1888,  p.  32,  §  23.54;  V.  S.  1804.  §  3015;  Rev. 
St.  Wis.  §  1818;  Sanb.  &  B.  Ann.  St.  §  1818.  A  pas.s,.n^'iM■  who  g.'ts 
on  a  tiain  without  a  ticket,  and  who,  to  the  conducior-s  repealed  de- 
mands lor  fare,  says  tliat  he  lias  not  as  yet  made  up  his  min.I  as  io 
where  lie  will  no.  iind  wIk.  puis  off  paying-  fare  for  that  r.asoii.  Is 
wilhin  the  railway  clauses  a<-t  (14  &  15  Vi.-t.  e.  51.  S  21.  subse.-.  .it. 
whirh  authorizes  the  ejecticm  of  passengers  refusing  l(.  p.iy  fare, 
miton  V.  Railway  Co..  17  C  C.  Q.  R.  42S. 

KBeekwith  v.  Railroad  Co.,  143  Mass.  (!8,  8  .\.  lO.  n75. 

(7s:{) 


§    ol'S  CARRIERS   OF   PASSENGERS.  (Oil.    24 

meiit  of  fare/  Where,  in  siicli  a  case,  the  parent  pre- 
fers to  get  off  with  the  child,  rather  than  pay  fare  or 
ride  on  without  her,  the  compam^  is  not  responsible 
in  damages.-  It  has  even  been  held  that  a  passengf^r 
on  a  railway  train  is  responsible  for  the  fare  of  a  child 
under  his  charge,  and,  on  refusal  to  pay  the  same,  may. 
together  with  the  child,  be  ejected  from  the  train,  al- 
though he  paid  his  own  fare.  Under  such  circum- 
stances the  law  implies  an  agreement  on  his  part  to  pay 
the  child's  fare;  and,  if  he  refuses  to  pay  it,  the  car 
rier  has  the  right  to  put  them  both  off, — the  adult  pas 
senger  because  he  has  not  complied  with  the  contract 
on  his  part  implied  by  law,  and  the  child  because  the 
carrier  is  not  required  to  carry  it  unless  its  fare  is 
paid.^  But  if  the  conductor  refuses  to  pass  a  child 
traveling  on  half-fare  rate  because  he  believes  it  to 
be  over  the  limited  age,  and  the  mother  also  leaves 
the  train,  she  may  recover  damages  if  the  refusal  be 
wrongful,  though  the  conductor  offers  to  pass  her  upon 
her  own  ticket  without  the  child.      It  is  unreasonable, 

§  313.     1  Beckwith  v.  Railroad  Co.,  143  Mass.  (iS.  8  N.  E.  875. 

2  Pittsburgh.  C.  &  St.  L.  Ky.  Co.  v.  Dewin,  86  111.  29(i. 

3  Philadelphia.  W.  &  B.  R.  Co.  v.  Hoeflich,  62  Md.  300.  Plaintiff, 
who  tendered  fare  for  herself  and  two  sisters,  was  informed  by  the 
conductor  that  the  sum  was  not  sufficient  fare  for  three,  and  that 
one  would  have  to  get  off.  Plaintiff  replied  that  she  would  get  off 
with  tlie  otliers,  whereupon  the  conductor  handed  her  back  the  money, 
and  all  of  them  got  off  at  the  next  station.  Held,  that  plaintiff  had 
no  cause  of  action  against  the  company,  and  the  fact  that  otlier 
conductors  had  permitted  plaintiff  and  her  sisters  to  ride  on  the  sum 
tendered  does  not  render  the  act  of  the  conductor  in  demanding  the 
regular  fare  improper.  Cox  v.  Terminal  Railway,  109  Cal,  100,  41 
Pac.  794. 

(784) 


Ch.  24)  EJECTION.  §  314 

in  such  a  case,  to  ask  a  mother  to  \oa\e  her  child.*  S(», 
if  a  conductor  on  a  railway  train  tiinls  a  child  si^ttiuj^' 
beside  a  female  passenger,  and  knows  that  tlie  father 
of  the  child  is  in  the  car,  or  could  know  on  propter  in- 
quiry, he  has  no  ritiht  to  hold  the  female  passenger  re- 
sponsible for  the  child's  fare,  and  eject  her  for  its  iiou- 
payment.® 

§  314.     SAME— TENDER    OF    FARE  AFTER    EJECTION 

BEGUN. 

A  tender  of  fare  after  the  train  has  been  stopped,  oi- 
is  in  process  of  being  stopped,  for  the  expulsion  of  a 
passenger,  does  not  reimpose  on  the  company  the  duty 
of  carrying  him.^  Whenever  a  passenger  refuses  to 
accede  to  a  just  and  lawful  demand  made  upon  him  by 
the  conductor  for  the  payment  of  his  fare,  after  being 
allowed  reasonable  time  and  opportunity  to  comply, 
he  renounces  his  right  to  the  position  and  privileges 
of  a  passenger,  and  subjects  himself  to  expulsion  from 
the  train.  If  he  changes  his  mind,  and  tenders  the  fare, 
before  anything  is  done  to  bring  the  train  to  a  stop  in 

4  Gibson  v.  Railroad  Co.,  30  Fed.  i)(t4. 

B  Pliiladelpliia,  W.  &  B.  R.  Co.  v.  Hoetlicli,  02  Md.  300. 

§  314.  1  Ilotl'haucr  v.  Railroad  Co..  .7J  Iowa,  342,  3  N.  W.  121 ;  Rail 
road  Co.  v.  Skillman,  39  Ohio  St.  444;  I'eople  v.  Jillson,  3  I'arkcr,  Cr. 
R.  (N.  Y.)  234;  Piclvoiis  v.  Railroad  Co.,  104  N.  C.  312,  10  S.  K.  .".f,; 
Gould  V.  Railroad  Co.,  18  Fed.  l.j.j;  Thoinas  v.  Geldart,  20  N.  H.  «.»•"); 
Louisville,  N.  &  G.  S.  R.  Co.  v.  Harris,  9  Lea  ('LVmi.)  ISii;  Illinois 
Cent.  R.  Co.  v.  Bauer,  00  111.  App.  124.  A  passenger  who  w  roii-liiilx 
refuses  to  i).iy  llie  hij^lier  train  faro  demanded  of  liini  by  the  rtin- 
ductor  cannot  reinstate  himself  to  the  rights  of  a  i)assen^'er  by  olYcr- 
inj?  to  pay  tlie  fare  after  tlie  train  has  been  sto]t|K-d  to  «'.ieil  him. 
Harrison  v.  Fink,  42  Fed.  787. 

V.  1  FET.CAU.P.\S. — 50  (785) 


§    314  CARRIERS   OF   PASSENGERS.  {Cll.    24 

order  to  eject  him,  his  refusal  will  be  retracted  in  time, 
and  his  right  to  remain  and  be  carried  will  remain  un- 
affected. If  he  higgles  and  hesitates  until  he  becomes 
a  proper  subject  for  ejection,  and  until  steps  have  been 
taken  for  that  end,  he  is  too  late.  Any  rule  which 
woiild  allow  one  passenger  to  plav  fast  and  loose  with 
the  conductor  would  allow  all  passengers  to  do  so,  and 
a  train  might  thus  be  kept  halting  and  alternating  be- 
tween running  at  ordinary  speed  and  stopping  through- 
out the  whole  journey;  and  to  this  embarrassment  not 
only  one  train,  but  every  train  for  the  carriage  of  pas- 
sengers, would  be  exposed. - 

But  where  a  ti'ain  is  stopped  at  a  regular  station,  and 
before  forcible  ejection  has  begun,  a  passenger  who 
has  unlawfully  refused  to  pay  the  fare  demanded  has 
the  right  to  tender  it;  and  if  the  conductor  refuses  it, 
and  ejects  him,  the  company  is  liable.^  Where,  how- 
ever, the  conductor  has  been  compelled  to  resort  to 
force  to  eject  a  passenger,  he  cannot  make  the  expul- 
sion illegal  by  offering  to  pay  his  fare  during  its  pro- 
cess, even  if  it  takes  place  at  an  ordinary  stopping 
place  of  the  train.  Having  invited  an  appeal  to  force, 
the  passenger  cannot,  at  his  option,  reserve  the  priv- 
ilege of  shielding  himself  from  its  application  by  in- 
voking the  protection  <  f  a  contract,  the  implied  con- 
ditions of  which  he  has  violated.  The  trial  of  his 
right  in  a  manner  which  he  has  deliberately  selected 
cannot  be  arrested  by  him,  when  its  course  is  not  pro- 

2  Georgia,  S.  &  F.  R.  Co.  v.  Asmore.  88  Ga.  529,  15  S.  E.  13,  over- 
niling  South  Carolina  R.  Co.  v.  Nix,  68  Ga.  572. 

3  O'Brien  v.  Railroad  Co.,  80  N.  Y.  236. 

(786) 


Ch.  24)  KJEcTioN.  §  314 

ceeding  to  bis  satisfaction,  so  as  to  make  its  continu- 
ance by  tbe  otber  party  nnhiwful.* 

Tbe  rule  does  not  apply  wbere  tbere  is  not  a  posi- 
tive refusal  to  pay  fare;  as  wbere  tbe  passenger  pays 
tbe  regular  ticket  fare  and  manifests  an  unwilling- 
ness to  pay  more,  and  good-bumoredly  tells  tbe  con- 
ductor tbat  be  will  get  off  if  tbe  train  is  stopped/  So. 
wbere  a  passenger  witbout  money  or  a  ticket  gets  on 
a  train,  believing  in  good  faitb  tbat  a  tax  certilicate 
in  bis  possession  will  be  received  in  payment  of  fan-, 
a  tender  made  by  anotber  passenger  as  be  is  being 
ejected  for  nonpayment  of  fare  sbould  be  accepted  by 
tbe  conductor,  and  tbe  company  will  be  liabk-  fm-  his 
ejection  after  sucb  a  tender. "^  So,  wbere  a  passenger 
does  not  refuse  to  pay  fare,  but  lacks  a  small  sum,  and 
tells  tbe  conductor  tbat  be  can  borrow  it  of  a  fellow 
passenger,  and  proceeds  to  make  tbe  effort,  be  is  en- 
titled to  a  reasonable  time  to  do  so/ 

4  Tease  v.  Railroad  Co.,  101  N.  Y.  307,  5  N.  E.  37,  reversing  11  Daly 
(N.  Y.)  350. 

5  Texas  &  P.  R.  Co.  v.  Bond,  62  Tex.  442. 

6  Louisville  &  N.  R.  Co.  v.  Garrett,  8  Lea  (Tenn.)  438. 

7  Curl  V.  Railway  Co.,  03  Iowa,  417.  10  N.  W.  0!».  and  19  X.  W.  308. 
Where  a  passenger  subject  to  deep  sleeps  or  chronic  drowsiness  falls 
asleep  soon  after  entering  a  ti-ain,  and  before  his  ticket  is  di'nianded. 
and  recovers  consciousness  while  being  ejecicil  by  ilir  conductor,  It  is 
the  conductor's  duty  to  accept  the  ticket  if  tlie  i.ass.Mmcr  on'cis  to 
produce  it  l)efore  reaching  the  car  door;  and,  wliile  tlie  conductor 
was  riglit  in  starting  to  eject  him,  lie  was  wrong  in  completing  It. 
Ferguson  v.  Railroad  Co.,  98  Mich.  533,  57  N.  W.  S.»l.  OfTci-  of  .i  per- 
son, in  company  with  i.laintiff  and  olliers  on  n  tr.iiii.  to  pay  fare  for 
all  of  them,  accompanied  by  his  taking  out  Ids  money,  more  than 
sufTicient  so  to  pay.  all  before  tlie  comhictor  (.nlered  i.laintilT  oil'  or 
made  any  attempt  to  stojj  tlie  train,  folloNved  by  refusal  of  tlie  con- 

(7S7) 


§  315  CARRIERS  OF  PASSENGERS.  (Ch.  24 

§  315.     SAME— RIGHT  TO    RESUME  JOURNEY  AFTER 

EJECTION. 

A  passenger  who,  for  nonpayment  of  his  fare,  has 
been  ejected  from  a  train  at  a  place  where  there  is  no 
station,  cannot,  by  climbing  upon  the  train  before  it 
starts,  and  tendering  the  fare,  obtain  a  right  to  be 
carried  by  it/  So,  a  passenger  who  has  been  right- 
fnlly  ejected  at  an  intermediate  station  for  nonpay- 
ment of  fare  has  no  right  to  resume  his  journey  on  the 
same  train,  on  tendering  fare  from  the  intermediate 
station,  but  must  pay  fare  for  the  whole  distance  trav- 
eled.^ 

But  where  H  passenger  tenders  a  conductor  a  cer- 
tain amount  of  fare  to  be  carried  to  a  certain  station, 
which  is  less  than  the  rate  fixed  by  the  company,  say- 
ing that  he  will  pay  no  more,  and  the  conductor  re- 
tains a  sum  sufficient  to  take  the  passenger  to  an  inter- 
mediate station,  and  returns  the  balance,  the  passen- 
ger will  have  the  right,  on  reaching  such  intermediate 
station,  to  pay  the  fare  demanded  from  that  point  to 
the  place  of  destination,  and  upon  his  ottering  to  pay 
the  same  he  cannot  rightfully  be  put  off  the  train."" 
So,  where  there  is  a  dispute  between  the  conductor 

diictor   to   carry   them,   is  a   siitficient  offer  to  make   the  expulsion 
wrongful.     Baltimore  &  O.  R.  Co.  v.  Xorris  (Tnd.  App.)  40  N.  E.  5r)4. 

§  315.  1  O'Brien  v.  Railroad  Co..  W  Gray  (.Mass.)  20;  State  v.  Camp- 
bell, 32  N.  J.  Law,  30!);  North  Chicago  St.  Ry.  Co.  v.  Olds,  40  111. 
App.  421. 

2  Pennington  v.  Railroad  Co.,  62  Md.  9.5;  Stone  v.  Railroad  Co.,  47 
Iowa,  82;  Swan  v.  Railroad,  132  Mass.  IIG;  Nelson  v.  Railroad  Co., 
7  Hun  (N.  Y.)  1±0. 

3  Cliicago,  B.  &  Q.  R.  Co.  v.  Bryan.  90  111.  12G. 

(788) 


Ch.  24)  EjFxTioN.  §  316 

aud  a  passenger  as  to  ilie  station  at  which  ihc  pas- 
senger should  change  trains  for  his  point  of  desiina 
tion,  and  the  passenger  is  ejected  at  the  station  whicli 
the  conductor  chiims  to  be  the  propter  phice  for  that 
purpose,  the  passenger  is  not  debarred  from  riding  on 
that  train  on  a  tender  of  the  pro])er  fare.* 

§  316.     SAME— LOSS  OF  TICKET  OR  FARE. 

A  passenger  who  has  lost  his  ticket  may  be  ejected 
on  his  refusal  to  pay  fare.  He,  and  not  the  company, 
is  to  blame  for  the  loss.  Besides,  as  a  general  rule,  a 
railroad  ticket  is  good  in  the  hands  of  any  person;  and 
to  deny  to  a  railroad  company  tlic  right  to  eject  a  pas- 
senger who  has  lost  his  ticket  might  result  in  com- 
l»elling  it  to  carry  two  passengers  for  a  single  fare' 
8q,  the  purchaser  of  a  nontransferable  commutation 
ticket,  who  has  lost  it,  may  be  eject(^l  on  his  refusal 
to  pay  fare.^  The  fact  that  a  passenger  loses  or  nns- 
lays  his  ticket  after  getting  on  the  train,  and  that  he 
exhibited  it  to  a  train  hand  before  getting  on  board, 
giA'es  him  no  right  to  ride  without  payment,  l-'roni 
the  very  nature  of  things,  there  can  be  no  distinction 
in  the  rights  of  a  passenger,  whether  he  loses  or  mis- 
lays his  ticket  before  getting  on  the  train  or  after- 
wards.^ So,  a  passenger  who  surr(Mi(k*rs  liis  ticket 
or  coupon  to  a  conductor,  aud   i-eccixcs   frdiii    liiiii   a 

4  Louisville  l^L-  N.  11.  Co.  v.  Brer  kinridgro  (Ky.)  34  S.  W,  701i. 

§  310.  1  Ham  v.  Canal  Co.,  14L'  I'm.  St.  (11 7,  lit  All.  1nr2.  Set",  also, 
ante,  §  279. 

2  Crawford  v.  liailroad  Cd..  JC  <»lii(»  St.  .'iSO;  Iiowns  v.  I{ailn>a<1  Co., 
36  Conn.  L'S7;    Crosson  v.  Railroad  Co..  11  riiila.  (Ta.)  .".'.17. 

8  I^uisvilir,  X.  A:  (J.  S.  K.  Co.  v.  I'l- inin^'.  1  J  Lea  (Tenn.)  128,  118. 

(7.SU) 


§  316  CARRIERS  OF  PASSENGERS.  (Ch.  24 

check  evidencing  his  right  to  ride,  must  produce  it  on 
demand  hj  anotlier  conductor,  who  tool^;  charge  of  the 
ti^ain  afterwards.  If  the  check  has  been  lost,  the  loss 
is  the  passenger's,  and  he  must  pay  his  fare,  or  leave 
the  train,  since  it  can  be  used  by  a  third  person,  and 
the  company  might  be  thus  defrauded.*  So,  a  pas- 
senger who  surrenders  his  ticket,  and  receives  a  check 
from  the  conductor,  and  tJien  goes  into  another  car, 
and  fails  to  produce  the  check  when  the  fare  is  again 
demanded,  may  be  ejected,  if  he  also  refuses  to  go  into 
the  first  car  with  the  conductor  for  identification.  The 
check,  if  given,  was  given  him  for  the  ver}^  purpose  of 
identification.  It  was  notice  to  him  that  the  con- 
ductor would  rely  upon  its  production,  and  not  on  rec- 
ollection.^ 

The  rule  in  Canada  is  the  same  as  in  the  United 
States.^  But  in  England  it  has  been  held  that  a  con- 
dition in  a  ticket  requiring  the  passenger  to  show  and 

4  Jerome  v.  Smith,  48  Vt.  230. 

5  Lucas  V.  Railroad  Co.,  98  Mich.  1,  56  N.  W.  1039.  A  passenger 
who  had  lost  his  ticket  entitling  him  to  a  seat  in  a  drawing-room  car 
applied  to  the  ticket  agent  for  another  ticket.  The  agent  declined  to 
do  so  on  the  ground  that  the  diagram  showing  the  seats  for  which 
tickets  had  been  issued  was  no  longer  in  his  possession,  but  the  pas- 
senger was  given  a  written  statement  that  he  was  entitled  to  a  seat. 
Held,  that  on  presentation  of  the  statement  to  the  conductor,  accom- 
panied by  a  proper  explanation,  coupled  with  the  fact  that  the  diagram 
showed  the  sale  of  an  unoccupied  seat,  it  was  the  conductor's  duty 
to  permit  the  passenger  to  remain  in  the  drawing-room  car,  and  his 
exclusion  therefrom,  on  refusal  to  pay  an  additional  fare,  was  wrong- 
ful.    Buck  V.  Webb,  58  Hun,  185,  11  N.  Y.  Supp.  617. 

8  Grand  Trunk  Ry.  Co.  v.  Beaver,  22  Sup.  Ct.  Can.  498.  reversing 
Beaver  v.  Railway  Co.,  20  Ont.  App.  476;    Curtis  v.  Railway  Co.,  12 
U.  C.  C.  p.  89. 
(790) 


Ch.  24)  EJFXTioN.  §  31G 

deliver  it  up  to  any  duly-authorized  servaui  on  dv. 
mand,  and  requiring  a  passenger  traveliui;  wiiliout  a 
ticket,  or  failing  or  refusing  to  show  or  dt  livci-  up  his 
ticket  as  aforesaid,  to  pay  the  fare  tioui  ihc  station 
whence  the  train  originally  started  to  tlic  cinl  of  his 
journey,  does  not  authorize  the  company  Lo  n-movc 
by  force  a  passenger  who  has  bought  a  tic-ket,  and 
accidentally  lost  it.  He  is  ri^ihtfullv  on  the  train, 
and  the  onlv  remedy  that  the  couipanv  has  for  his 
breach  of  contract  to  show  and  deliver  up  tlu*  ticket 
is  by  a  proceeding  to  recover  the  fare.  "No  oik-  has 
a  right  to  lav  hands  forcibly  on  a  man,  in  the  absence 
of  some  legal  authority  to  do  so,  or  some  agivement  to 
that  effect."  ' 

In  all  cases,  however,  a  passenger  who  has  lost  his 
ticket  or  his  fare  is  entitled  to  a  reasonable  time  with- 
in which  to  search  for  it.*     As  a  general  rule,  the  time 

7  Butler  V.  Railway  Co.,  21  Q.  B.  Div.  liiiT.  IMaintiff  tooti  tickets 
for  liiinself,  his  servants,  and  his  liorses,  by  a  particular  train  on  de- 
fendant's railway.  The  train  was  afterwards  divided  into  two  by 
defendant's  servants.  I'laintiff  traveled  on  tlie  first  train,  taldiitr  all 
the  tickets  with  him.  When  tlie  second  train,  with  the  servants  and 
horses,  was  about  to  stiirt,  plaintiff's  servants  were  re(iuireil  to  produce 
their  tickets,  and.  on  bein.u:  unable  To  do  so.  defendant  refusiil  to 
carry  tliein.  Tleld,  that  a  by-law  reiiuirinjr  i)assengers  to  procure 
tickets,  and  to  sliow  tlieni  and  deliver  tlieni  up  when  re<piired,  did  not 
justify  defendant's  refusal  to  carry  the  servants,  since  it  couiraitcd 
witli  i)laintiff,  and  delivered  tlie  tickets  to  him.  .Tennln;,'s  v.  Kail 
way  Co.,  L.  K.  1  Q.  B.  7. 

»  Intcrnaticmal  &  (i.  N.  Ky.  Co.  v.  Wilkes,  OS  Tex.  (ilT.  ."»  S.  W.  i:il : 
Louisville  &  N.  R.  Co.  v.  Mayliin,  <iti  Miss,  s;!,  ,-.  S.mtli.  Hit ;  .Majiics  v. 
Railroad  Co.,  38  Coini.  T,r,~.  Wlii-rc  tl»e  iiasscnH;er  liiids  liis  ticket 
after  tiie  con<lnctor  lias  sij,'iialcd  tiic  train  to  stop,  and  od'ers  it  to  tiie 
conductor,  the  latter  lias  no  right  to  eject.  Hayes  v.  Railroad  Co., 
20  N.  Y.  AVkly.  Dig.  S-M. 

(T'JI) 


§  317  CARRIERS  OF  PASSENGERS.  (Ch.  24 

occupied  by  a  passenger  train  in  running  from  one 
station  to  another  will  be  deemed  reasonable;  and, 
if  the  passenger  fails  to  produce  a  ticket  or  his  fare 
at  the  second  station,  he  may  be  ejected.® 

A  passenger  who  drops  his  money  in  a  street  car  is 
entitled  to  renmin  in  the  car  a  reasonable  length  of 
time  to  search  for  it,  and  the  coudiTctor  has  no  right 
to  eject  him  for  nonpayment  of  fare,  without  allowing 
him  to  look  for  his  money. ^^  So,  a  conductor  has  no 
right  to  expel  a  passenger  who  has  neither  a  ticket 
nor  money  with  which  to  pay  fare,  but  who  informs 
the  conductor  that  a  friend  in  another  car  will  pay  his 
fare,  without  giving  the  passenger  any  opportunity 
whatever  to  get  the  money. ^^ 

§  317.     SAME— MISTAKE  AS  TO  TICKET  OR  FARE. 

There  is  an  irreconcilable  conflict  of  authority  as  to 
whether  a  passenger  must  submit  to  an  ejection  from 
the  train,  where  he  has  paid  his  fare,  but  where, 
through  some  mistake  of  the  carrier's  servants,  he  has 
not  received  the  proper  evidence  of  payment  The 
correct  rule,  and  the  one  supported  by  the  great  weight 
of  recent  authority,  is  that  the  ticket  is  not  conclusive 
in  dealings  between  passenger  and  conductor,  and  that 
the  conductor  has  no  higher  right  to  expel  a  passen- 
ger than  the   company   itself  has.^      In  expelling   a 

9  Chicago  <fc  A.  R.  Co.  v.  Willard,  31  111.  App.  43.5. 

10  Hall  Y.  Railway  Co.  (C.  P.  Pliila.)  14  Wldy.  Notes  Cas.  242. 

11  Clark  V.  Railroad  Co..  91  N.  C.  500. 

§  317.    1  St.  Louis.  A.  &  T.  Ry.  Co.  v.  Mackie,  71  Tex.  491,  9  S.  W. 
451;   Texas   &  P.  Ry.  Co.  v.  Dennis,  4  Tex.  Civ.  App.  90.  23  S.  W.  400; 
Missouri  l»ac.   Ry.  Co.  v.  Martino,  2  Tex.  Civ.  App.  G34,  18  S.  W. 
(792) 


Ch.   24)  EJKLTION.  §   31 


OK 


person  from  a  vebicle,  tlu*  rarrier  resorts  to  the  ri^ht 
of  self-help,  and  not  to  any  legal  remedy.  It  would 
therefore  seem  that  the  carrier  acts  at  its  jm  lil  whm- 
ever  it  takes  the  law  into  its  own  hands,  and  if  it 
turns  out  that  the  person  ejected  was  not  a  trespasser, 
but  was  lawfully  on  the  train,  that  the  carrier  ought 
to  respond  in  damages  for  the  wrongful  ejection.  The 
general  principle  is  that  a  person  Avho  has  a  right  t<> 
go  to  any  place  without  being  regarded  as  a  tres- 
l)asser,  and  Avho  does  go  there  proi»erly  and  lawfully, 
cannot  be  interrupted  so  long  as  he  does  not  inter- 
fere with  the  right  of  anybody  else,  but  siuiply  pur- 
sues his  own  legal  right;  and  any  pei'son  who  does 
interrupt  him,  treat  him  as  a  trespasser,  aud  forcibly 
eject  him  as  a  trespasser,  is  liable  in  law  for  an  ac- 
tion of  assault  and  battery. - 

This  principle,  that  in  such  circumstances  the  ticket 
is  not  conclusive  as  between  passenger  and  conductor, 
though  denied  by  courts  of  high  standing,'  is  support- 
ed bv  numerous  recent  cases.  The  supreme  court  oC 
the  United  States  has  recently  held  that  the  conver- 
sation between  a  passenger  purchasing  a  ticket  and 
the  ticket  agent  is  admissible  as  to  what  the  contract 
of  carriage  is.*     80,  a  passenger  who  is  wholly  witli- 

lOOU,  21  S.  W.  781;    Gulf,  C.  &  S.  F.  Ky.  Co.  v.  A\  ri.i:lii,  2  Tox.  Civ. 
Apv.  4U3,  21  S.  W.  ;W'J. 
■-  Wiitkins  V.  Railroad  Co.,  21  D.  C.  1. 

3  See  post,  §  32.J. 

4  New  York,  L.  E.  &  W.  II.  Co.  v.  AViuter's  Ailiu'r,  143  U.  S.  »;<i.  U 
Sup.  Ct.  35(1.  In  this  case  the  factis  were  as  follows:  The  tiikn 
apent  informed  a  passenger  tliat  ho  would  he  permitted  to  sl<>|)  over 
at  an  intermediate  station  hy  tlie  conductor.  The  eouduelor  i»uiK-lied 
his  ticket,  and  told  him  that  was  suUicient  to  give  him  the  ri:.'ht  to 


§  317  CARRIERS  OF  PASSENGERS.  (Ch.  24 

out  fault,  aud  who  has  done  all  that  can  reasonably 
be  required  of  him  to  do,  and  in  whose  ticket  there  is 
an  error  through  the  mistake,  carelessness,  or  negli- 
oence  of  the  agent  or  conductor  of  the  railroad  com- 
pany,  and  Avho  is  ejected  from  the  train  on  the  ground 
that  his  ticket  is  defective,  may  recover  for  his  ejec- 
tion, and  is  not  bound  to  pay  another  fare,  and  then 
sue  the  company  to  recover  that.'    So,  a  passenger  who 

stop  over.  On  takiuj?  another  train  to  complete  his  join'ney,  the  con- 
ductor refused  his  ticket,  and  demanded  full  fare,  on  the  ground  that 
he  had  no  stop-over  check,  as  required  by  the  company's  rules.  Held, 
that  tlie  passenger  was  rightfully  on  the  train,  that  the  conductor  had 
no  right  to  expel  him,  and  that  he  had  the  right  to  make  a  sufficient 
resistance  to  denote  that  he  was  being  removed  by  compulsion  and 
against  his  will.  In  Yorton  v.  Railway  Co.,  02  Wis.  367,  21  N.  W. 
51G,  23  N.  W\  401.  tlie  facts  were  as  follows:  A  conductor  made  a 
mistake  in  a  stop-over  check  which  he  handed  to  a  passenger,  and 
the  conductor  of  another  train  refused  to  honor  it,  and  requested  the 
passenger  either  to  pay  fare  or  get  off  the  train.  The  passenger 
cliose  the  latter  alternative,  and  was  put  off  at  a  station,  without  force. 
It  was  held  that  plaintiff  liad  the  right  to  elect  to  pay  fare  or  leave 
the  train;  and,  choosing  tlie  latter  alternative,  he  had  the  right  to 
recover  all  such  damages  as  were  the  direct  and  natural  result  of  the 
wrongful  act  complained  of.  It  was  further  held  that  plaintiff  was 
Bot  obliged  to  pay  the  fare  demanded,  and  complete  his  journey  on  the 
second  train,  for  the  purpose  of  mitigating  damages.  But  see  Id.,  54 
Wis.  234,  11  N.  W.  4S2,  wliere  a  contrary  conclusion  was  apparently 

reached. 

5  Northern  Tac.  K.  Co.  v.  Pauson.  17  C.  C.  A.  287,  70  Fed.  585;  Cal- 
loway V.  :Mellett,  l.j  Ind.  App.  30G,  44  N.  E.  198.  A  passenger  on  a 
steamer  holding  a  ticket  entitling  him  to  flrst-class  accommodations 
is  under  no  obligation,  when  tlie  validity  of  his  ticket  is  denied  by 
tlie  purser,  to  pay  anotlier  tir.st-class  fare,  and  then  sue  the  steamboat 
company  to  recover  it;  but  lias  a  right  to  insist  on  the  accommodations 
which  his  ticket  entitles  him  to,  and,  on  being  denied  tlieiu,  may  sue 
the  company  in  tort  for  its  refusal  to  perform  its  duty.  The  Willa- 
mette Valley,  71  Fed.  712.  The  bertli  check  issued  to  a  passenger  by 
(794) 


Ch.  24)  EJECTION.  §  317 

calls  for  and  pays  for  a  ticket  to  a  specified  jdace,  Imt 
who,  by  mistake  of  the  company's  a«i«Mii,  is  -i\»Mi  a 
ticket  different  from  that  desire<l,  with  whirli  h.-,  with- 
out fault,  boards  the  train,  believinj;-  he  has  the  j. roper 
ticket,  is  entitled  to  ride  thereon  the  disiancc  t'<n-  whirli 
he  has  paid,  upon  making  proper  ('.\|>hiiia(i(>n;  ami, 
if  the  conductor  refuses  to  heed  his  statements,  thr 
company  must  respond.  He  has  paid  for  his  riihs  and 
presented  in  good  faith  the  only  evidence  given  him 
by  the  company  of  his  right  to  make  tlie  join-m-y.  If 
the  company  has  not  furnished  him  the  propel-  token 
to  convey  the  fact  to  the  mind  of  its  conductor,  the 
blame  and  the  conseqtiences  thereof  must  rest  iii>oii 
it,  being  in  fault,  rather  than  upon  the  passenger,  wlio 
is  not.*^  So,  a  passenger  who  enters  into  a  contract 
with  a  station  agent  for  a  first-class  passage,  and  who 
pays  the  full  price  for  a  first-class  ticket,  but  to  whom 
the  agent  by  mistake  delivers  a  second-class  ticket, 
which  the  passenger  does  not  examine,  need  not  i)ay 
the  conductor  an  additional  fare  to  secure  the  right 
to  ride  in  a  first-class  car,  though  a  rule  of  the  com- 
pany makes  the  ticket  conclusive  as  between  iIk-  ton 
ductor  and  passenger.  If  the  passenger  refusing  to 
pay  the  additional  fare  demanded  is  compelled  to  i-ide 
in  a  second-class  car,  he  may  recover  danuiges  thereby 
sustained.^      So  where  a  passenger    presents  a  valid 

the  conductor  of  a  sleepiii;;  car  is  iini  coinlu.sive  as  to  wliai  ln-nli 
tlie  passenger  actually  bargained  lor.  and  parol  evidence  Is  adniissiliU* 
to  show  what  berth  the  passi^nger  bougiit.  .Mann  Itdudoir-Cin  Cii.  v. 
Dupre,  4  C.  C.  A.  540.  .")4  Fed.  (!4);. 

«  Evansville  &  T.  II.  K.  Co.  v.  Cates.  11  liid.  .\pp.  ITU.  11  .\.  H.  7l:i. 

7  St.  Loais,  A.  &  T.  Uy.  <-"•  v.  .Ma.kic.  71  'I'.-x.  IIM.  !»  S.  W.  l.-»l. 
A  niistalie  of  the  ticket  agent  in  Issuing  a  ticket  on  a  rouic  m.ii  I'liijtled 

(7'Jo) 


§  317  CARRIERS  OF  PASSENGERS.  (Cll.  24 

ticket,  though  in  a  mntihited  form,  the  conductor  is 
bound  to  receive  it,  unless  its  condition  is  due  to  the 
fault  of  the  passenger,  and  the  conductor,  in  the  exer- 

to  be  taken  by  the  passeni,'Ci-  is  the  mistake  of  tlie  corporation,  and  the 
conductor  can  no  more  deny  the  passenger  the  benetit  of  the  contract 
as  really  made  than  could  the  carrier  itself.  Gulf,  C.  &  S.  F.  Ry.  Co. 
V.  Rather,  3  Tex.  Civ.  App.  72,  21  S.  W.  951.  Where  a  passenger,  in 
the  hurry  of  embarliing,  does  not  notice  a  mistake  in  the  ticket,  caused 
by  the  fault  of  the  ticket  agent,  the  question  of  his  negligence  in  not 
discovering  the  mistake  is  for  "the  jmy.  Id.  A  railway  company  is 
liable  for  ejecting  a  passenger  who  is  rlglitfully  on  a  train,  and  has 
paid  his  fare,  though  the  ejection  is  the  result  of  the  honest  belief  of 
the  conductor  that  he  has  not  paid,  and  the  passenger  makes  no  effort 
to  show  that  he  has  paid,  and  though  the  mistake  is  immediately 
discovered  by  the  conductor,  and  the  passenger  is  taken  back  on  the 
train  before  it  has  left  the  station  where  he  was  ejected.  Gulf,  C.  & 
S.  F.  Ry.  Co.  V.  Barnett  (Tex.  Civ.  App.)  34  S.  W.  449.  If  a  pas- 
senger has  once  paid  his  fare,  he  cannot  be  ejected  because  he  refuses 
to  pay  a  second  time;  and,  if  he  is  so  ejected,  the  company  will  be 
liable  to  him  in  damages;  and  it  will  be  no  defense,  in  an  action 
against  the  company  for  a  wrongful  expulsion,  that  its  conductor  was 
honestly  mistaken.  Gorman  v.  Southern  Pac.  Co.,  97  Cal.  1,  31  Pac. 
1112.  A  passenger  who  has  a  right  to  ride  on  a  train,  but  whose  ticket, 
through  a  mistake  of  the  railroad  company's  employes,  does  not  evi- 
dence the  I'ight,  need  not  pay  an  additional  fare,  and  sue  for  the  return 
thereof,  as  money  paid  under  duress.  He  may  insist  on  his  rights. 
and,  if  ejected  from  the  train,  may  sue  the  company  for  wrongful 
ejection.  Cherry  v.  Railroad  Co.,  52  Mo.  App.  499.  One  who  calls 
for  a  ticket  between  two  named  points  on  a  railroad,  pays  therefor,, 
and  receives  from  the  agent  a  ticket  Avhich  is  of  a  complicated  char- 
acter, and  not  easily  understood  by  persons  unfamiliar  with  its  use, 
is  not  chargeable  with  the  agent's  mistake  in  giving  him  a  wrong 
ticket,  and  may  recover  from  the  company  for  his  expulsion  from  the 
train.  Georgia  R.  Co.  v.  Olds,  77  Ga.  673.  A  person  who  calls  for  a 
ticket  good  to  a  particular  station,  and  paj^s  the  price  demanded  there- 
for, has  a  right  to  rely  on  the  agent  of  the  company  to  give  him  the 
proper  ticket,  and,  no  peculiar  circumstances  intervening,  there  is  no 
duty  on  the  person  purchasing  to  examine  the  same;  and  any  mistake 
which  may  occur,  as  to  the  point  of  destination,  is  chargeable  to  the 
(796) 


Ch.  24  EJECTION.  §  317 

cise  of  reasouable  care,  becomes  satisticd  that  it  is  uot 
valid.® 

Ill  some  of  the  cases  stress  is  laid  on  the  fact  that 
the  passenger  inquired  of  tlie  ticket  agent  or  roiidiict- 
or  as  to  the  validity  of  the  ticket,  and  thai  he  was 
assured  that  it  was  good.''     Thus,  where  a  ticket    is 

railway  company,  and  not  to  the  person  receiving  or  pnnliasing  tlic 
ticket.  Georgia  Itailroad  tV:  Banking  Co.  v.  Donglierty.  sii  ila.  744. 
12  S.  E.  747.  Wliere  a  coupon  tieliet  on  its  face  contains  everytliing 
necessary  to  entitle  a  pa.ssenger  to  ride  to  !:is  destination,  the  fact  tliai 
the  check  mark  was  torn  off  does  not  justify  the  company  in  refusim: 
to  accept  the  ticket,  since  the  passenger  is  not  in  fault  as  to  tlils. 
Ohio  «fc  M.  Ry.  Co.  v.  Cope,  3G  111.  App.  It7.  The  wrongful  t'jertion  ^^\' 
a  passenger  from  a  car  is  actionable,  though  unaccompanied  by 
pby.sical  force  or  violence,  or  any  rjide  or  uugenthnnanly  words  or 
acts  on  the  part  of  the  conductor,  who  acts  in  perfect  good  faitli,  l)c- 
cause,  owing  to  a  mistake  of  another  of  defendant's  employes,  then-  is 
an  eiTor  in  the  pa.ssenger's  ticket.  WilLson  v.  Railroad  Co.,  .")  Wash. 
(521.  32  Pac.  -ItiS,  and  34  I*ac.  14(>.  If  a  railroad  company  issues  .i 
proper  ticket,  and  the  conductor  compels  the  holder  to  get  off,  he  is 
entitletl  to  damages;  and  this,  though  it  was  through  an  honest  mis- 
take of  another  of  the  company's  servants.  Baltimore  &  O.  R.  Co. 
V.  Bambrey  (I'a.  Sup.)  16  Atl.  G7.  In  an  action  for  a  wroiigfid  expul- 
sion, based  on  tlie  passenger's  refusal  to  pay  additional  fare  demaudt-ii 
of  him  l»y  the  conductor,  who  believed  that  his  ticket  was  good  onI\ 
to  an  intermediate  station,  the  fact  that  the  conductor  advised  plain 
tiff  to  pay  fare,  and  settle  the  matter  with  the  agent  who  sohl  tin- 
ticket,  and  that  there  was  a  doubt  as  to  whether  the  tieket  was  really 
good  for  the  whole  distance,  cannot  mitigate  the  damages.  The  pas- 
senger, having  paid  his  fare,  was  as  much  entitled  to  stand  on  his 
rights  as  the  company,  believing  the  fare  not  to  have  been  iKiid.  was 
to  stand  on  its;  and  whether  he  should  stay  on  the  train,  or  refuse  ii. 
pay  and  suffer  expulsion,  was  a  matter  which  the  law  h-ft  .s(»lely  to  thr 
passenger's  di-scretion.  Lake  Krie  iV:  ^\'.  R.  Co.  v.  Arnold,  S  Ind. 
App.  297,  34  N.  E.  742. 

8  Houston  A:  T.  C.  R.  Co.  v.  Crowe  (Tex,  Civ.  Ai.p.l  .".7  S.  W.  1071. 

oMnrdock  v.  It;iilrn;i,l  Co.,  i:;7  Ala.ss.  2!»3;    Cult.  •'.  \   S.   I'.  Ry.  Co. 
V.  Halbrook  (Tex.  Civ.  App.)  33  S.  W.  ]n2S;    Ilaniy  v.  Kallr.iMd  Co.. 

(71(7) 


§  317  CARRIERS  OF  PASSENGERS.  (Ch.  24 

purchased  in  perfect  good  faith,  and  the  ticlcet  agent 
informs  the  passenger  that  it  is  a  good  ticket,  the  fact 
that  there  is  a  punch-mark  thereon,  indicating  to  the 
conductor  that  it  has  been  canceled,  does  not  affect 
the  passenger's  right  to  travel  thereon,  and  he  cannot 
be  ejected  for  a  refusal  to  pay  his  fare  a  second  time.'** 
In  all  cases,  however,  where  there  is  a  mistake  in 
the  ticket,  it  is  the  passenger's  duty  to  make  an  ex- 
planation to  the  conductor.  While  a  passenger  s  tick- 
et is  not  in  all  cases  conclusive  evidence  of  his  con- 
tract with  the  carrier,  yet  it  is  sufficient  evidence  of 
the  contract  to  justify  a  conductor  (an  agent  of  the 
railway  company  other  than  the  one  with  whom  the 
contract  was  made)  in  acting  upon  it,  as  showing  the 
actual  conti-act,  in  the  absence  of  any  explanation  by 
the  passenger  that,  through  fraud,  mistake,  or  inad- 
vertence, it  does  not  show  the  real  contract.  Hence 
a  passenger  who  calls  for  a  first-class  ticket,  but  who 
receives  a  second-class  ticket  through  the  mistake  of 
the  ticket  agent,  cannot  recover  for  his  ejection  from 
the  first-class  car  by  the  conductor,  in  the  absence  of 
any  explanation  or  statement  that  a  mistake  had  been 
made.^^ 

58  Hun.  607,  12  N.  Y.  Supp.  55.  Where  a  passenger,  whose  desti- 
nation necessitates  a  change  of  trains,  is  unable  to  obtain  a  ticliet 
at  the  station,  ;u.a  pays  his  fare  to  the  conductor,  who  neglects  to 
give  him  a  ticket,  the  rule  that  a  passenger  must  show  his  ticket  or 
pay  his  fare  will  not  authorize  his  ejection,  if  the  conductor  of  tliat 
train  is  informed  by  the  first  conductor  of  tlie  payment  of  fare.  Hom- 
iston  V.  Railroad  Co.,  3  Misc.  Rep.  342,  22  N.  Y.  Supp.  738. 

10  Hufford  V.  Railroad  Co.,  64  Mich.  631,  31  N.  W.  544.    But  see  s.  c. 
53  Mich.  118,  18  N.  W.  580. 

11  Alabama  &  V.  Ry.  Co.  v.  Drummond  (Miss.)  20  South.  7. 

(798) 


Ch.   24)  EJECTION.  §    '"^IS 

§  318.     SAME— DEMAND  OF  EXCESSIVE  FARE. 

Wheu  a  passeujier  endeavors  to  Im.v  a  lickcl  befoiv 
eutering  the  ears,  and  is  unable  to  do  so  (»u  arecuint 
of  the  fault  of  the  corporation  or  its  nuciits  or  serv- 
ants, and  he  offers  to  pay  the  ticket  r:ito  on  tho  tiain, 
and  refuses  to  pay  the  car  rate,  it  is  uidnw  fiil  for  t  ho 
corijoration,  or  its  agents  or  servants,  to  ejeit  him  fioni 
the  train.     He  is  entitled  to  travel  at  the  lower  rate, 
and  the  corporation  is  a  trespasser,  and  liable  for  the 
consequences,  if  he  is  ejected  from  the  train   by  its 
agents  or  servants.     The  passenger  may,  under  such 
circumstances,  either  pay,  under  protest,  the  excess 
demanded,  or  refuse  to  pay  it,  and  hold  the  corpora- 
tion responsible  in  damages  if  he  is  ejected  from  the 
train.'     In  such  a  case  the  conductor  is  bound  to  know 
whether  or  not  the  passenger's  failure  to  get  a  ticket 
is  owing  to  the  fault  of  the  ticket  agent'     A  passen- 
ger who  tenders  the  legal  fare,  and  is  put  off  the  train 
because  he  will  not  pay  an  excessive  fare  demandod, 
may  recover  the  damages  suffered  by  reason  of  the 
ejection,     lie  is  not  botmd  to  pay  the  excessive  fare, 
with  a  right  to  stie  for  the  excess.' 

§  318.  1  Forsee  v.  Railroad  Co.,  (53  Miss.  GO;  Gulf,  C.  &  S.  F.  Ry. 
Co.  V.  Sparger  (Tex.  Civ.  App.)  31»  S.  W.  l<«n. 

2  Georgia,  S.  &  F.  R.  Co.  v.  Asniore,  88  (Ja.  r>2!).  15  S.  E.  i:?. 

3  Chamberlain  v.  Railway  Co.  (Mich.)  <i8  N.  W.  423.  lu  this  ras... 
the  court  (listiiifruislicd  cases  where  tlie  passenger  was  seeking  f. 
travel  without  having  a  ticket  indicating  his  riglit  to  pa.s.sagc  and 
witliout  offering  to  pay  his  fare.  -Tlu'  .as.,  at  i.ssue  is  entirely  .iif- 
ferent  from  any  of  them.  Here  liic  d.Men.lant  was  cxa.ting  an  Il- 
legal fare.-sometliing  it  liad  no  rigid  to  do.  Tin'  plaintiff  was  seek- 
ing to  have  tiansp.>rlati..n  as  a  passeng.-r,  and  was  willing  t.,  pay  the 

(7'J:») 


§  320  CARRIERS  OF  PASSENGERS.  (Ch.  24 

§  319.     SAME— MISTAKE  OF  GATEMAN. 

Where  a  passenger  presents  himself  at  a  depot  gate 
in  time  to  take  a  train,  the  company  is  responsible 
for  the  act  of  its  gatemau  in  refusing  him  permission 
to  pass,  under  the  mistaken  belief  that  he  is  too  late.' 
So,  it  is  liable  for  the  gateman's  act,  in  forcibly  pre- 
venting a  passenger  from  getting  on  the  train,  on  the 
ground  that  his  ticket  is  defaced,  where  it  is  in  the 
same  condition  as  it  was  when  purchased,  though  the 
rule  would  be  otherwise  if  it  had  become  defaced  by 
the  passenger's  fault.'  So,  where  a  passenger  is  pre- 
vented from  taking  a  ^rain  by  the  gatekeeper,  owing 
to  the  failure  of  the  proper  officers  to  notify  him  that 
persons  having  tickets  like  plaintiff's  were  entitled 
to  go  on  the  train,  the  fact  that  the  gatekeeper  was 
acting  in  accordance  with  his  instructions  does  not 
relieve  the  company  from  liability  for  the  assault.^ 

§  320,     SAME— MISTAKE  IN  TAKING  UP  TICKETS. 

Where  a  conductor  takes  a  ticket  from  a  passenger 
which  entitles  him  to  passage  from  one  station  to  an- 
other, and  between  these  Doints  demands  of  him  an- 
other fare  for  part  of  the  trip,  and  ejects  him  from  the 
car  for  failure  to  pay  it,  such  acts  constitute  a  legal 
wrong  for  w^hich  the  passenger  is  entitled  to  recover 

legal  fare  therefor.     Upon  the  tender  of  the  legal  fare,  he  had  a  right 
to  be  carried  to  his  destination."     Id. 

§  319.    1  Baltimore  &  O.  R.  Co.  v.  Carr,  71  Md.  135,  IT  Atl.  1032. 

2  Northern  Cent.  Ry.  Co.  v.  O'Conner,  76  Md.  207,  24  Atl.  449. 

8  Watldns  v.  Railroad  Co.,  21  D.  C.  1. 
(800) 


Ch.  24)  BJKCTioN.  §  321 

daiuajies/  So,  in  such  a  cast',  a  secmul  r(»iuliirt<ir  lias 
no  lej;al  rij^ht  to  expel  the  passenger  because  he  iKk-s 
not  pay  fare,  or  produce  the  ticket,  althou<i;h  a  ruh* 
of  the  company  may  require  expulsion  under  surli  cir- 
cumstances. The  law  is  of  hijiher  auili<trity  than  (he 
rule.- 

§  321.     SAME     MISTAKE  AS  TO  TIME  LIMIT. 

"NYliere  there  is  a  mistake  on  the  face  of  a  mih'a^c 
ticket  as  to  the  year  of  its  issuance,  but  tho-c  has  b<M'ii 
an  attempt  to  rectify  the  error  by  an  int('rlin«'at.ion 
as  to  thedateof  its  expiration,  an  action  will  lie  aiiainsi 
the  company  for  the  ejection  (if  the  jiasseuiier  during 
the  year  for  which  the  ticket  was  in  fact  issued,  t  hou^li 
a  rule  of  the  company  requires  conductors  an«l  licket 
collectors  to  refuse  mutilated  tickets.^  So,  if  the  time 
limit  on  the  ticket  is  unreasonably  short,  an<l  ihc  i>as- 
sen<ier  explains  the  facts  to  the  conductiu',  showinji 
that  the  time  limit  is  unreasonable,  if  is  equlNalent 
to  an  explanation  made  to  the  company,  and  the  cum 

§  320.     1  St.  Louis,  L  M.  &  .S.  lly.  Co.  v.  Davis.  :.»;  .\rU.  .')!,  l'.>  S.  W. 

107. 

2  East  Tennessee.  \'.  iV  <}.  Ity.  Co.  v.   Kiiijr.  ss  Ca.  1  I."'..  1  I  S.  K.  TUN. 

§  .SUl.  1  Trice  v.  Railway  Co..  M>  W  .  \a.  JTl.  Jl  S.  !■:.  UC'-J.  In  this 
case  it  was  said:  "Tliat  |tlie  rule  a^'aiiisi  imiiilatcil  (irkcts|  is  j;<hmI 
between  company  and  collector:  but  can  it  dcsiKiy  ilic  ri>:lit  ul'  a 
pa.ssenger  under  a  ticket  which  in  fact  has  nut  lic^-n  nmiilateii  or 
chanfjed?  Suppose  the  collector  should  tind  inai'Us  of  nintilation  oi- 
alteration  when  a  court  shoidd  lind  noin'.  \\<iuld  the  ri;;h(s  of  a 
party  be  dcleatc<l  in  a  court  by  the  dcci.-ii  n  of  ilie  collcclorV  The  rule 
i.s  prudent;  but  if  an  instance  of  its  applicalion  is  nne  of  mistake  or 
error,  and  thereby  one  unilty  of  no  fraud  Is  injured.  iIh-  company,  liki' 
others,  must  answer  for  the  coMsctpicMccs  of  its  aiiion  or  ilic  iiiM.iix<- 
of  its  agent,  though  appurenlly  well  mi-ant." 

V .  1  KET.  CA  R.  I'AS. ^>  1  C'^' '  1  ) 


§  321  CARRIERS  OF  PASSENGERS.  (Ch.  24 

pany  can  no  more  justify  the  conduct  of  tlie  conductor 
in  exacting-  an  adtlitioual  fare  than  it  could  a  like 
exaction  directly  made  by  it.  If,  in  such  case,  the 
passenoer  should  be  right,  the  carrier  cannot  exact  the 
performance  of  conditions  contrary  to  the  rights  of 
the  passenger  under  the  contract  It  assumes  the  re- 
sponsibility of  any  wrong  it  or  its  servants  may  codi- 
mit  under  the  circumstances.'  So,  where  the  purchas- 
er of  a  round-trip  ticket  asked  for  a  return  transpor- 
tation good  for  30  days,  and  the  ticket  agent  agreed 
to  give  him  such  a  ticket,  a  time  limit  of  10  days  on 
the  ticket  is  not  controlling,  and  the  company  is  liable 
for  the  ejection  of  the  passenger  on  his  return  trip, 
begun  after  the  expiration  of  10  days,  but  before  the 

2  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Wright,  2  Tex.  Civ.  App.  463,  21  S.  W\ 
399.  A  passenger  purchased  a  ticket  for  an  extended  journey,  which, 
by  mistake  of  the  ticket  agent,  was  so  punched  as  to  indicate  that  it 
expired  on  the  day  of  issue.  One  conductor  telegraphed  for  instruc- 
tions, and  received  an  order  to  honor  the  ticket  until  further  instruc- 
tions. At  the  end  of  his  division  he  handed  her  the  telegram;  but  the 
conductor  of  the  next  division  refused  to  honor  the  ticket,  though  the 
telegram  was  shown  him,  and  he  worried  her  for  several  hours,  and 
tinally  put  her  o£E  at  an  intermediate  station  at  midnight.  Another 
IKissenger  then  paid  her  fare,  and  she  resumed  her  journey.  Held, 
that  plaintiff  had  a  right  of  action  for  the  expulsion  and  ill  treatment. 
Johnson  v.  Railway  Co.,  46  Fed.  347.  But  in  Gulf,  C.  &  S.  F.  Ry.  Co. 
v.  Daniels  (Tex.  Civ.  App.)  29  S.  W.  426,  it  was  held  that  a  ticket 
purchased  with  knowledge  of  a  time  limit  expressed  on  its  face  can- 
not be  varied  by  parol  evidence  of  the  declarations  of  the  ticket  agent 
that  it  will  be  good  for  the  day  after  the  time  limited,  there  being 
neither  negligence  nor  fraud  on  the  part  of  the  agent.  The  ticket  pur- 
chased with  knowledge  of  its  provisions  constitutes  the  contract  be- 
tween the  parties,  and  the  rule  excluding  parol  evidence  to  vai-y  a 
written  contract  applies. 
(802) 


Oh.  24)  EjECTiox.  §  322 

expiration  of  30.^  So,  a  passeiioer  who  has  hoeii  -ism 
im  expired  ticket  by  mistake  of  tJie  ticket  a^ivin  may 
maintain  an  action  of  tort  aj^ainst  tho  railway  rmw- 
pany  for  his  ejection  from  The  ti-ain  by  the  cniKliicior, 
thoug-li  the  latter  acted  in  ^^ood  laiih,  and  idirsuaiii 
to  iustnictions.* 

g  322.     SAME— MISTAKE  AS  TO  TRAINS. 

A  passenger  who,  by  mistake  of  a  ticket  agent,  gets 
on  a  train  not  scheduled  to  stop  at  his  desil nation, 
and  who  is  ejected  by  the  conductor  befon^  reaching 
his  destination,  may  recover  against  the  c(»mi>any  as 
for  a  tort,  and  not  merely  for  a  bi-eacli  of  «(tiiti'act, 
though  the  conductor,  in  making  the  ejection,  eul'oiciMl 
the  reasonable  rules  of  the  company.^ 

3  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  llalbruuk  (  IVx.  Civ.  Api».)  o3  S.  \N  . 
1028. 

*  Ix)Ui.sviIle  &  N.  R.  Co.  v.  Gaiiies  (Ky.)  'M  s.  W.  lit. 

§  822.  1  Pittsburgh,  C.,C.&  St.  L.  Ry.  Co.  v.  Reyuold.s  (OIiId  Stip.)  45 
N.  E.  712;  Cliicaso,  B.  &  Q.  R.  Co.  v.  Spiik  (N*'li.)  7()  N.  W.  '.r^r,.  In 
the  case  first  cited,  the  supreme  court  of  (Jliiu  said:  "As  betwiH'u  tlu' 
conductor  aud  tlie  company,  tlie  latter  may  Jiave  no  rijilit  to  eoiiiplaiu 
of  him.  He  violated  no  duty  lie  owed  to  the  company,  llf  simply 
obeyed  liis  instructions  as  received  Iidiii  the  company  applicalth*  to 
such  a  case.  Tlierefore  it  may  well  be  ."^aid  tliat,  as  between  iilni  and 
the  company,  tlie  conduct  of  tlie  conductor  was  ri;;litinl.  Hnt.  as  be- 
tween the  company  and  tlie  passenger,  the  cpieslion  is  wliully  a  dif- 
ferent one.  "When  a  coniiKiny.  by  the  ad  ii\'  a  iJiuper  a^mi.  causes 
a  pa.ssenser,  as  in  this  ease,  b)  take  tlie  wnm;;  train,  nne  tiiat  does 
not  stop  at  his  station,— it  must  be  lielii  t<.  Ii.ive  eontemplai.-d  Unit, 
mider  the  instruction  uiven  the  conductor,  the  passenger  wi>uld  havi- 
to  be  put  off  tlie  train  as  soon  as  the  error  should  l)e  dlsenvered  liy 
the  conductor,  tniless  lie  ^lllluld.  as  demanded,  pay  adilltinnal  fare, 
and  be  carried  lievdinl   his  station.      'I'he  a<t  of  tin-  lirst  nn>'i\[   of  the 

(S(>:{) 


§  322  CARRIERS  OF  PASSENGERS.  (Ch.  24 

But,  as  we  liave  seen,  a  person  has  no  right  on  a  train 
Avhieh,  lUKhH'  the  rules  of  the  company,  does  not  stop 
at  the  station  for  which  lie  has  purchased  a  ticket, 
provided  he  lias  not  been  misled  by  any  of  the  com- 
pany's agents,  and  hence  he  may  be  ejected  therefrom 

company,  misdirecting  tlie  i^issenger,  is  the  wi-ongful  act  for  wliich 
tlae  tirst  company  becomes  liable  in  tort;  and  tlie  act  of  the  con- 
ductor in  ejecting  Iiim  is  a  consequence  of  the  first  wrongful  act. — is 
the  proximate  cause  of  the  passenger  being  ejected;  and,  as  against 
the  passenger,  the  act  of  the  conductor  in  ejecting  him,  being  the  act 
of  the  company,  is  wrongful.  The  fallacy,  as  before  stated,  arises 
out  of  the  mistaken  assumption  that  tlie  act  of  the  conductor  is  right- 
ful as  against  the  passenger.  This  can  in  no  instance  be  the  case 
where  the  comimny  is  responsible  for  the  mistake  of  the  passenger  in 
taking  the  wrong  train.  All  the  cases  cited  in  supix)rt  of  the  conten- 
tion of  the  plaintiff  in  error  that  in  any  way  do  so  are  based  on  the 
fallacy  that  the  conductor  had  the  right  to  eject  the  passenger,  when, 
as  a  matter  of  law,  the  real  question  is  whether  the  act  of  the  com- 
pany done  by  its  agent  is  rightful  as  against  the  ejected  party.  The 
question  may  be  simplifieil  by  eliminating  the  fact  of  agency  in  each 
instance;  that  is,  by  supposing  that  the  common  carrier  in  each  in- 
stance acts  for  himself  or  itself.  Here  no  mind  would  doubt  but  tliat 
the  carrier,  having  instructed  the  passenger  to  take  one  of  his  trains, 
with  knowledge  of  his  destination,  would  be  a  wrongdoer  should  he. 
on  discoA^ering  his  mistake,  eject  him  from  the  train,  on  the  ground 
that  he  has  taken  the  wrong  train.  But  the  intervention  of  an  agent, 
by  whom  the  act  is  done  in  each  instance,  does  not  change  the  case; 
for  each  act  of  the  agent  done  in  the  scope  of  his  agency  must  be  im- 
puted to  the  principal, — is  in  law  the  act  of  the  principal.  *  *  *  The 
general  principle  derived  from  the  cases  is  that  where,  by  the  fault  of 
an  agent  of  the  company,  a  passenger  takes  the  wrong  train,  or  is 
without  a  ticket,  or  one  imperfectly  or  erroneously  stamped,  or  for 
any  similar  reason,  and  is  ejected  by  the  conductor  of  the  train,  in 
pursuance  of  the  rules  of  the  comiiany,  it  is  liable  to  him  as  for  tort. 
The  rule  concedes  to  the  company  the  right  to  make  reasonable  rules 
for  the  conduct  of  its  business,  and  to  retinire  their  enforcement  by 
its  agents.  The  contingency  that  in  ceitaiu  cases  the  company  will 
be  made  hable  by  the  act  of  its  conductor  in  follnwing  its  rules,  where 
(804) 


Ch.  24)  EJECTION.  §  323 

without  the  use  of  uuuecessaiy  viiilnico."  So  ilic  fact 
that  a  rule  of  a  railroad  coniitanx ,  ftuhiililiiiLL  |>ass»*ii- 
wers  from  ridine;  on  through  fiviuln  irains.  has  ofttMi 
been  violated,  does  not  de]ni\('  tlic  r(»iii[»aiiv  (»r  ilir 
ri«;ht  to  begin  its  enforcement  wliciicxt'i-  ii  iiiav  (1<'<mii 
it  proper  to  do  so;  and  one  "svho  boards  a  fn-i^ln  iraiii, 
which  has  no  appearance  of  beinii  ho]i]  out  fi>r  the  ac- 
commodation of  passengers,  may  be  ejevtcd  rn>m  ii  by 
the  conductor.^ 

§  323.     SAME— MISTAKE  AS  TO  ROUND-TRIP  AND 
COUPON  TICKETS. 

Where  one  purchases  a  roun<l-trip  ticket,  and  the 
outgoing  conductor,  by  mistake,  takes  u\t  the  w mn^ 
end  of  it,  the  passenger  is   nevertheh-ss   entithMl    lo 

thf  appearances  on  Avhich  ho  acted  were  created  l>y  the  fault  of  an- 
other agent,  of  which  he  had  no  knowledge,  is  a  risk  iiieidenl  to  the 
privilege  of  making  rules;  and  it  should  suffer  from  tlu'  fault  of  the 
agent  that  caused  the  mistake,  rather  than  an  innocent  person." 

2  Chicago,  St.  L.  &  P.  R.  Co.  v.  Bills,  104  lud.  i:'..  ::  X.  K.  "Ul:  .Vtehi- 
son.  T.  &  S.  F.  R.  Co.  v.  Cants,  38  Kan.  (ios.  17  I'.i.-.  r>\:  (  aldw.'ll  v. 
Railroad  Co.,  8  Pa.  Co.  Ct.  R.  4(J7;  .Missouri,  K.  vV:  T.  Uy.  Co.  v.  Haw- 
son  (Tex.  Civ.  App.)  2!)  S.  W.  llOi;.  See.  als),  ante,  S  .•{trj  .-t  s<hi.  Thi.s 
is  the  rule  in  Michigan,  even  thiiugh  the  passenger  was  misled  by  the 
ticket  agent.      I  ake  Shore  iV;  M.  S.  \l\ .  <"o.  v.  rier.i-.  47  Mi.  h.  l.'77,  11 

N.  W.  l.')?. 

sHobbs  V.  Railway  Co.,  40  Ark.  .-..'m.  .".  S.  W.  .".sc  \Mure  a  c.n 
ductor  of  a  freight  train  informs  ji  jiassengfr  lliai  Ik-  lamnii  cany 
him  bes'ond  a  station  10  iiules  shnii  (if  his  dcstinatinn.  :iiid  nlTiTs  \» 
stop  the  train  and  let  him  get  off.  ili.-  n-fiisal  ..f  ih.-  iKi.ssi-nger  to  gel 
off  amounts  to  an  election  to  be  cirried  l<>  the  staiiiui  iiami'd  by  the 
conductor,  and  the  taking  and  <aii<-eling  of  the  pass.ng«'r"<  tl.k.'t.  un- 
der these  circumstances,  does  not  take  away  tlu'  <-oiidnitor's  riplit  to 
eject  him  when  the  station  named  is  n'a<lif<l.  .Sonili  \  N.  .\.  It.  Co. 
V.  Huffman.  7i;  Ala.  402. 

(S(ir») 


§  323  CARRIERS  OF  PASSENGERS.  (Ch.  24 

transportation  on  the  ticket  left  in  his  hands.     If  tlie 
return  conductor  refuses  to  accept  this,  and,  ignoring;- 
exphination,  ejects  him  for  want  of  a  proper  ticket, 
the  railroad  company  is  liable  therefor  in  damages. 
The  holder  of  the  ticket,  under  such  circumstances, 
giving  a  reasonable  explanation  of  the  mistake,  is  en- 
titled to  be  carried  according  to  the  real  contract;  and 
any  regulation  of  the  carrier  making  the  ticket  the 
only  evidence,  and  authorizing  the  conductor  to  dis- 
regard such  explanation,  is  unreasonable,  and  will  not 
justify  expelling  the  passenger.'     So,  a  condition  in 
a  round-trip  tU-kei,  consisting  of  two  parts,  w^ith   a 
puncture  mark  between  them,  "Not  good  if  detached," 
will  not  justify  the  expulsion  of  a  passenger  on  the 
going  trip,  on  the  ground  that  the  two  portions  of  • 
the  ticket  had  been  broken  apart,  where  the  passen- 
ger exhibits  both  parts  to  the.  conductor,  and  it  ap 
pears  that  they  were  separated  through  no  fault  of 
the  passenger.-     Where  a  round-trip  ticket  contains 

§  323.  1  Kansas  City,  M.  &  B.  R.  Co.  v.  Riley,  68  Miss.  765,  1> 
South.  44:};  riiiladelpliia,  W.  &  B.  R.  Co.  v.  Rico,  <)4  Md.  63,  21  Atl. 
97.  The  mere  fact  that  a  return  coupon  ha.s  become  soiled  and 
changed  in  color  does  not  justify  the  conductor  in  ejecting  the  pas- 
senger, without  affording  him  an  opportunity  to  make  an  explanation 
showing  the  ticket  to  be  genuine,  wliere  all  the  printing  and  the 
stamp  of  the  company  are  plainly  visible  on  the  ticket.  Chicago  & 
K.  I.  R.  Co.  V.  Conley.  6  Ind.  App.  0.  .32  N.  E.  96,  8ti.l. 

2  Wightman  v.  Railway  Co.,  73  Wis.  169,  40  N.  W.  689.  A  railroad 
ticket  was  issued  in  coupons,  gcMxl  over  two  sections  of  defendant's 
railroad,  Avith  a  right  to  stop  over.  The  conductor  on  the  first  train 
detached  both  coupons,  and  gave  the  iiassenger  a  conductor's  check  as 
evidence  of  his  right  to  ride  on  the  second  section.  The  conductor  on 
the  second  train  declined  to  honor  the  check,  and  demanded  fare. 
Held  that,  thougli  under  the  rules  of  the  company  the  check  was  not 
(SOO) 


Ch.  24  •  EJECTION.  §  324 

a  provision  reqnirino-  the  passeuj^er  to  present  it  to  the 
agent  at  destination  for  identitication  and  staiiiiiin.u, 
and  the  passenger  does  so  present  it,  and  the  agent 
takes  the  ticket  and  returns  it  fohh'd  to  the  passenger, 
without  any  objection  as  to  tho  sufricienc.v  of  the  iden- 
tification, and  luuhn-  such  circumstances  as  to  lead 
the  passenger  to  believe  it  has  been  staniju'd,  the 
conductor  acts  at  his  peril  in  exi)elling  the  passenger 
because  the  ticket  has  not  been  stamped,  aftci-  ilic 
passenger  has  fully  explained  the  situation  to  hini; 
and  for  such  ejection  the  passenger  is  entitled  to  re- 
cover damages,  though  he  immediately  afterwards  re- 
entered the  train,  i)aid  another  fare,  and  continued 
his  journey.^ 

§  324.     SAME— MISTAKE  AS  TO  STREET-CAR  FARES. 

A  passenger  on  a  street  car,  who  has  ]»ai(l  his  f;ire, 
entitling  him  to  complete  his  journey  on  a  connecting 
<ar,  may  maintain  an  action  against  the  c(»iM]iany  for 
his  ejection  from  that  car  because  the  condiicioi-  of 

jJTOod.  and  though  the  first  conductor  had  no  ri>:hi  to  dctarh  l)()th 
coupons,  yet  the  passenger  was  not  bound  to  niaki'  imiuirUs  as  to 
the  extent  of  the  conductor's  authority,  and  that  lie  had  a  riglit  to 
refuse  payment  of  fare,  and  recover  for  his  ejectiim  from  the  train. 
■VN'hich  ensued  on  such  refusal.     I'ahner  v.  Uaihoad  Co..  .'i  S.  c.  .">S(>. 

3  Northern  Tac.  K.  ( "o.  v.  I'auson.  17  C.  (\  A.  JsT.  7(t  I-Vd.  ns.".;  Mis- 
souri rac.  Ry.  Co.  v.  Martiuo.  2  Tex.  Civ.  App.  fCU.  IS  S.  W.  1(m;(;.  I'l  s. 
W.  781.  Wliere  a  coupon  ti(  kct  good  over  two  lines  is  presented  to 
the  conductor  of  the  first  line,  and  lie  by  mist.ilic  rt-iaiiis  llu-  ronpon 
good  over  the  second  line,  ami  rcOinis  ilic  oihi-r  touiioii  to  tiic  i>as- 
senger.  the  jiasscngcr  m.'iy  iii.iiniaiii  :in  :iclioii  .•i;;;ilii>-i  ilu-  lirst  carrier 
for  her  expulsion  from  the  cars  of  tlie  second  <arrier,  wiiicli  declined 
to  receive  the  coupon  gooil  over  tlie  roa<I  of  tlie  first  carrier.  I.ouis 
ville,  X.  A.  iV:  C.  U.  Co.  v.  Conrad,  4  Ind.  \V]k  s:!.  :!<•  \.  K.  4<m;. 

(SOT) 


§  324  CARRIERS  OF  PASSENGERS.  (Ch.  24 

tlip  first  car  had  failed  to  give  him  a  transfer  check, 
or  had  given  him  a  mutilated  or  defaced  check.  In 
such  a  case,  though  the  passenger  can  present  no  proper 
evidence  of  his  right  to  ride,  and  though  it  may  have 
been  the  dut}^  of  the  conductor  towards  the  carrier 
to  eject  the  passenger,  ^et  the  carrier  is  responsible. 
By  its  previous  neglect  of  duty  towards  the  passenger 
it  has  justified  him  in  assuming  that  he  has  a  right 
to  continue  his  journey  on  a  car  from  which  the  con- 
ductor, in  accordance  with  the  carrier's  regulations, 
should  expel  him.^     So  a  street-railway  comj)any  is 

§  324.  1  Appleby  v.  Railway  Co.,  54  Minn.  IGO,  5.5  N.  W.  1117. 
Wiiei'e  a  conductor  on  a  street  car  by  mistake  gives  a  passenger  a 
transfer  elieclc  wliich  appears  on  its  face  to  have  expired  by  limita- 
tion, and  this  fact  is  not  liuown  to  the  passenger,  the  company  is  lia- 
ble for  his  ejection  by  the  conductor  of  the  connecting  car.  Muckle 
V.  Railway  Co.,  79  Hun-,  82,  29  N.  Y.  Supp.  732.  A  street-car  transfer 
.check,  issued  to  a  passenger  at  9  a.  m.,  and  good  for  the  connecting- 
car  for  10  minutes  after  being  punched,  had  both  the  hours  of  9  a.  m. 
and  7:30  a.  m.  punched.  The  passenger  boarded  a  connecting  car 
two  or  three  minutes  after  5>  a.  m.,  but  the  conductor  of  that  car  re- 
fused to  receive  the  check,  on  the  groimd  that  it  was  two  hours  old, 
and,  on  the  passenger's  refusal  to  pay  fare,  ejected  him,  though  the 
conductor's  attention  was  called  to  the  9  o'clock  punch,  and  though 
assured  that  it  had  been  issued  at  9.  Held,  that  the  ejection  was 
Avrongful,  and  that,  assuming  that  the  double  punching  created  a 
doubt  in  the  conductor's  mind,  he  had  no  right,  in  the  circumstances, 
to  resolve  that  doubt  against  plaintiff.  Laird  v.  Traction  Co.,  IGO  Pa. 
St.  4,  31  Atl.  51.  A  street-car  company  which  has  adopted  a  system 
of  permitting  passengers  to  change  cars  without  transfer  cliecks  must 
give  the  public  a  reasonable  notice  of  a  regulation  requh-ing  transfer 
checks  as  an  evidence  of  the  passenger's  right  to  ride  on  the  con- 
necting car;  and  a  passenger  who,  on  the  day  after  the  change  of 
rules  has  been  made,  gets  on  the  connecting  car  without  notice  of  the 
change,  cannot  be  ejected  for  his  failure  to  procure  a  transfer  check. 
Consolidated  Traction  Co.  v.  Taboru  (X.  J.  Sup.)  32  Atl.  685.     Where, 

(808) 


Oh.  24)  EJECTION.  §  324 

liable  in  damages  for  the  ejection  of  a  i»asscii<i«'i-, 
where  it  appeal's  that  the  passenger  had  dropped  his 
fare  in  the  box  in  obedience  to  the  printeil  rule  of  the 
company,  and  had  no  knowledge  of  privat«'  dirertions 
given  to  the  driver  to  go  throngli  iht*  cars  when  crowd- 
ed, and  collect  the  fare."  So,  where  a  driver  aiiilim- 
ized  to  make  change  on  behalf  of  the  company  deliv- 
ers to  a  passenger  a  package  in  whit  h  there  is  a  short- 
age of  five  cents,  to  which  his  attention  is  imnKMliatcly 
called,  the  passenger  mnst  be  regarded  as  having  paid 
his  fare  of  five  cents,  and  the  driver  has  no  right  to 
thereafter  eject  him  for  his  failure  to  put  an  additional 
fare  in  the  box,  although  a  rule  of  the  company  requir- 
ing passengers  to  put  their  fares  in  the  box  is  reason- 
able, and  a  passenger  may  ordinarily  be  ejected  from 
the  car  upon  his  refusal  to  comply  with  the  rule.'     A 

<in  presentation  of  a  coupon  ticlvot,  goo<l  over  two  conneetius;  stri'i't- 
inilway  lines,  the  conductor  ni'sHjiontly  tears  it  so  as  to  include  almut 
■one-third  of  the  coupon  of  the  connectinj?  road  .is  well  as  that  ttf  his 
•own,  and  hands  the  nnitilated  fragment  to  the  passenger,  the  con- 
ductor of  the  secend  line  is  bound  to  know  that  the  fr.igiiiriit  is  a  iMir- 
tion  of  a  genuine  ticket  used  on  his  line,  which,  if  wiiidi'.  wmild  have 
•entitled  the  passenger  to  a  ride  on  his  line,  .iiid  he  has  im  ri^'ht  to 
•eject  the  passenger  for  nonpaj-ment  of  fare.  Ituwser  v.  Kailway  Co., 
!tT  Mich.  5Go,  5G  X.  ^^'.  '.>-'57.  But  a  conductor  of  a  street  car  has 
the  right  to  eject  a  p.-isseiiger  who  offers  a  transfer  <heck,  not  merely 
torn,  but  torn  in  two  pieces,  where  it  aiipears  that  there  is  a  custom 
cf  passengers  to  whom  transfei-  checks  have  l»een  Issued,  imt  \vlu>  du 
not  care  to  use  them,  to  tear  them  in  iiieces,  and  tiirow  ihem  away, 
jiciir  the  iX)int  where  plaintiff  lioarde<l  the  car  from  whicii  he  was 
ejected.      W(jods  v.  U.aihv.iy  Co.,  4.S  .Mo.  .\p](.  lJ."i. 

2  porry  v.  Kailway,  ir.M  I'a.  St.  SM.  S,  .\tl.  TT'J. 

8  Curtis  V.  Kailway  Co.,  04  Ky.  .'.T.:.  1'::  S.  W.  :!i;."..  A  rule  uf  a 
stieet-railway  comiiany  imiKisiiig  an  extra  charge  for  each  |iackage 
"t(jii  large  to  be  carried  on  ihe  lap  of  ihe  passenger  wllhoul  liicduunod- 

(SOD) 


§  325  CARRIERS  OF  PASSENGERS.  (Ch.  24 

passenger  ejected  from  a  street  car  for  an  alleged  fail- 
ure to  pay  his  fare,  nnder  the  definite  charge  of  the 
conductor  that  he  is  attempting  to  beat  his  way  over 
the  road,  is  not  required  to  use  another  street-car  ticket^ 
in  his  possession,  to  avoid  expulsion,  in  order  to  re- 
duce the  damages  as  much  as  possible.* 

§  325.     SAME— CASES  HOLDING  TICKET  CONCLUSIVE 
AS  BETWEEN  CONDUCTOR  AND    PASSENGER. 

A  number  of  cases  decided  by  courts  of  high  stand- 
ing are  squarely  in  conflict  with  the  views  expressed 
in  the  preceding  sections.  These  cases  all  proceed  on 
the  principle  that,  as  between  conductor  and  passen- 
ger, the  ticket  is  conclusive  evidence  of  the  passen- 
ger's right  to  travel;  and  that  if,  through  the  mistake 
of  any  of  the  carrier's  servants,  he  cannot  produce  the 
proper  ticket,  he  may  be  expelled  from  the  car.  In 
such  a  case  it  is  held  that  he  cannot  recover  damages 
for  the  ejection,  but  only  for  the  breach  of  contract, 
which  are  generally  limited  to  his  additional  expenses 
in  reaching  destination.  The  reason  for  this  rule  is 
stated  to  be  the  impossibility  of  operating  railways 
on  any  other  principle,  with  a  due  regard  to  the  con- 
venience and  safety  of  the  rest  of  the  traveling  pub- 
lic, or  the  proper  security  of  the  company  in  collect- 
ins  others,"  is  reasounble:  but  tlie  deterniination  of  a  conductor  tliat 
tAvo  picture  frames  2  feet  long  and  20  inclies  wide  are  witliiu  tlie 
rule  is  not  conclusive  on  the  passenger,  and,  in  an  action  for  his  ejec- 
tion because  of  his  refusal  to  pay  the  extra  charge,  the  question  is  one 
of  fact  for  tlie  jury.  Morris  v.  Railroad  ("o..  IK:  X.  Y.  .j.j2,  22  X,  E. 
1097. 
4  Sprenger  v.  Traction  Co.,  lo  Wash.  GGU,  47  I'ac.  17. 

(810) 


Ch.  24)  EJECTION.  §  325 

inji  its  fares.  The  coiuliutor  cannot  decide  from  the 
statement  of  the  passenger  what  liis  vi'ibal  contract 
with  the  ticket  agent  was,  in  ihc  absence  of  the  C(nin- 
ter  evidence  of  the  agent.  To  do  so  would  take  more 
time  tlian  a  condnctor  can  spare  in  the  |»roi>er  and 
safe  dis(diarge  of  his  manifold  duties,  and  ii  would 
render  the  company  constantly  snbject  to  fraud  and 
consequent  loss.  The  passenger  must  submit  to  tlie 
inconvenience  either  of  paving  his  fare  or  of  being  eject- 
ed, and  relj  upon  his  remedy  in  damages  against  the 
company  for  the  negligent  mistake  of  the  ticket  agent.' 
Thus,  where  a  ticket  agent,  by  mistake  or  fraud- 
ulent design,  sells  to  a  passenger  a  ticket  which  shows 
on  its  face  that  it  is  expired  and  worthless,  the  pas- 
senger cannot  maiutain  an  action  of  trespass  against 
the  company  for  his  expulsion  by  the  condu<tor,  who 
refused  to  accept  the  ticket.  In  snch  a  case  there  can 
be  no  recovery  for  the  ejection,  but  onlv  for  money 
expended  in  reaching  destination. ■  So,  a  passenger 
Avho  informs  the  conductor  of  his  desire  to  stoj*  over 
at  an  intermediate  station  must  see  that  he  receives 
a  proper  token  giving  him  the  right  to  stop  over,  in 
addition  to  the  verbal  assurance  of  the  con<luctor;  and 
where  the  check  given  him  by  the  conductor  states 
that  it  is  "good  for  this  day  and  train  only,"  liis  re- 

§  32.J.  1  Poulin  V.  Kaihvay  Co.,  52  Fed.  I'.tT;  I'lcdciick  v.  Kailn.a.l 
Co.,  37  Mich.  'M2;  Huffoni  v.  Kaihvay  Co.,  .';{  Mi.li.  118,  18  N.  \V. 
nSO;  McKay  v.  Railroad  Co.,  .'{4  W.  \  a.  *;:>.  11  S.  K.  737;  WcsU-rn 
Maryland  R.  Co.  v.  Stncksxlalc,  S.'J  .M<1.  IJI.'.,  34  Atl.  SSii;  Itiadshaw  v. 
Railroad  Co.,  13.")  Mass.  407. 

2  Baggett  V.  Railroad  Co.,  3  Ap|r.  D.  C.  r.i'i.':  li.-ill  v.  Kalimad  Co., 
l.">  Fed.  57;  Id.,  !>  I''<-d.  ."iS.".;  I'ciiiisyivaiii.i  Co.  v.  lliiif.  II  ()ld<i  St. 
27(i;    Crawford  v.  Railnad  Co.,  2i;  Dliin  Si.  .'.SO. 

(Sll) 


§  325  CARRIERS  OF  PASSENGERS.  (Cll.  24 

course  against  the  company,  if  any,  is  for  breach  of 
the  contract.  He  cannot  resist  expulsion,  and  then 
sue  for  damages  thereby  sustained,  where  no  more 
force  than  necessary  to  accomplish  the  result  was 
used.^  The  fact  that  a  conductor  of  a  train  has  failed 
to  give  a  passenger  a  check  when  taking  up  his  ticket 
does  not  entitle  the  passenger  to  complete  his  journey 
on  a  connecting  train;  and,  if  he  is  ejected  from  that 
train  for  refusal  to  pay  fare,  his  recovery  is  limited 
to  the  value  of  the  ticket  of  which  he  was  wrongfully 
deprived  by  the  first  conductor,  it  appearing  that  he 
had  the  money  with  which  to  pay  his  fare,  and  after- 
wards paid  it,  and  completed  his  journey  on  a  later 
train.* 

3  Peabody  v.  Navigation  Co.,  21  Or.  121,  26  Pac.  1053. 

4  Van  Dusen  v.  Railway  Co.,  t)7  :Mich.  439,  .50  X.  W.  848.  See,  also, 
to  same  effect,  Mahouey  v.  Kaihvay  Co.,  93  Mich.  012,  53  N.  W.  793; 
Townsend  v.  Railroad  Co.,  50  X.  Y.  295,  reA^ersins  4  Hun,  217. 
Though  a  conductor  has  by  mistake  taken  up  the  return  coupon  of  a 
round-trip  ticket,  the  company  is  not  liable  for  the  ejection  of  the 
passenger  on  the  return  trip  by  a  conductor  who  refuses  to  accept  the 
going  coupon,  if  the  passenger,  befcre  entering  the  returning  traiu, 
could,  by  usiug  ordinary  diligence,  have  discovered  the  mistake  of  the 
tirst  conductor.  W^iggins  v.  King,  91  Hun.  340,  30  N.  Y.  Supp.  70S. 
Where  a  nontransferable  1,000  mile  commutation  ticket  is  issued  to 
"Mr.  E.  Bannerman,"  the  conductor  is  justihed  in  refusing  to  let  a 
woman  ride  on  the  ticket,  though  her  name  is  also  E.  Bannermau,  and 
though  her  husband,  who  purchased  it,  informed  tlie  conductor  that  it 
was  purchased  for  her.  Chicago  c*t  N.  W.  Ry.  Co.  v.  Baunerman,  15 
111.  App.  100.  Where  a  second-class  ticket,  good  only  on  a  particular 
train,  contains  a  provision  that  "no  agent  or  employe  has  power  to 
modify  the  contract,"  no  assurance  of  the  baggage  master  or  ticket 
agent  that  it  may  be  used  on  a  limited  traiu  carrying  only  tirst-class 
liassengers  can  confer  any  right  of  transportation  not  conferred  by  the 
ticket  itself.  New  York.  L.  E.  &  W.  liy.  Co.  v.  Bennett,  1  C.  C.  A. 
544,  50  Fed.  490.     A  passenger  who  pays  for  three  tickets,— for  him- 

(812) 


Ch.  24)  EJECTION.  §  326 

§  326.     SAME— RIGHT     TO     RESIST     WRONGFUL     EX- 
PULSION. 

On  the  question  of  the  passen}i:er*s  ri^ht  to  resist  a 
■wrongful  expulsion  from  the  train  for  liis  failure  lo  |iro- 
duce  a  proper  ticket  or  otlier  evidcnrt'  of  a  riglii  ti»  ride, 
thecourts  have  divided  on  the  same  lines  ason  the  qnes- 

self  and  two  others,.— but  wlio  by  mistake  of  tlu'  ticket  ajient  receives 
only  two,  must  pay  his  fare  to  the  conductor  on  demand,  and  may  be 
expelled  for  his  refusal  so  to  do.  Weaver  v.  Railroad  Co.,  3  Tliomp. 
&  C.  (X.  Y.)  27t».  A  passenger  who  had  mileage  taken  out  of  his 
book  by  the  conductor  for  his  entire  trip  changed  seals  at  an  inter- 
mediate station.  The  conductor  faiknl  to  re<-(>giuze  him,  and  de- 
manded fare.  He  simply  said  that  he  had  i»iud  his  fare,  and.  on  be- 
ing asked  where  to,  said:  "You  ought  to  ki.c  w  where  I  paid  my  fare 
to.  It  is  your  business  to  know."  Tlie  condiictm-  thcreuixm  ejected 
him,  but  after  he  was  off  the  car  the  oonduetor  recognized  him,  and 
asked  him  to  get  on  again.  This  the  passenger  refused  to  do,  with  tlu' 
statement:  "I  will  fix  you."  Held,  that  t!ie  passenger  having  faileil 
to  produce  his  mileage  liodk.  or  to  give  his  name  to  tlie  conductor,  or 
to  explain  how  or  when  lie  liad  paid  his  fare,  cotild  not  rei-over  for 
the  ejection,  since  sucli  an  explanation  wouhl  liave  avoided  tlie  mis- 
take. "White  V.  Itailroad  Co.  (Mich.)  Cj  N.  \V.  :>2\.  Where  a  pas- 
senger on  a  street  car  receives,  without  rcailing  it,  a  wrong  transfer 
check,  and  the  conductor  of  the  second  car  (hvlines  to  receive  it  in 
I>ayment  of  fare,  the  passenger,  after  having  refused  to  p.iy  fare  to 
the  second  conductor,  and  been  by  him  expelird  from  the  car.  cainiot 
maintain  an  action  against  the  corporation  for  his  expulsion.  "It  Is  no 
great  hardship  ii]Kjn  the  passenger  to  imt  Inm  tip<»n  the  duly  of  seeing 
to  it,  in  the  tirst  instance,  that  he  receives  and  i»rescnts  to  llie  con- 
ductor the  proper  ticket  or  check."  Hradshaw  v.  lJ;iilroad  Co.,  i;r. 
Mass,  407.  A  i):issenger  was  sold  an  excursion  lickci  liy  llie  agent 
of  a  railroad  company,  which,  by  its  terms,  was  re(|uired  (o  be  .stamp 
ed  for  retuni  pass;ige  by  the  secrctaiy  of  a  cani|>-Mieeling  assoclaiion. 
The  camp  meeting  liad  closed,  ;ind  llie  seciel:iry  liad  gone  awjiy.  The 
passenger  tendered  the  unstamped  ticket  f(»r  n-iuin  passjige,  and.  on 
the  refusal  of  the  cojidiictor  to  ac<ciit  ii,  refused  to  i>ay  fare.     Held. 

(Sill) 


§  326  CARRIERS  OF  PASSENGERS.  (Ch.  24 

tion  of  the  conclusiyeness  of  the  passenger's  ticket 
as  between  himself  and  the  conductor.  It  is  believed 
that  the  weight  of  authority  and  of  reason  is  in  favor 
of  the  proposition  that  a  passenger  lawfully  on  the 
train,  and  having  a  right  to  be  carried,  has  the  right 
to  make  a  reasonable  resistance  to  an  effort  to  eject 
him,  though  through  some  mistake  of  the  company's 
servants  he  has  not  the  proper  ticket;  and  for  inju- 
ries sustained  in  consequence  of  such  resistance  the 
company  is  liable.'     Thus,  a  passenger  purchasing  a 

that  he  was  rightfully  ejected,  and  could  not  recover  therefor.  W^est- 
eru  Maryland  R.  Co.  v.  Stocksdale.  83  Md.  245,  34  Atl.  880,  distinguish- 
ing cases  where  ticliets  are  apparently  good  on  their  face,  and  the 
passenger  has  no  notice  of  any  defects,  from  those  where  the  ticket 
on  its  face  is  obviously  not  good,  and  is  notice  to  plaintiff  that  it  does 
not  entitle  him  to  passage.  Where,  OAving  to  a  defect  in  a  round-trip 
ticket,  the  agent  at  destination  refuses  to  stamp  it  on  the  offer  of  the 
holder  to  identify  himself  as  the  purchaser,  it  is  the  duty  of  the  latter 
to  purchase  another  ticket;  and  if  he  fails  to  do  so,  and  is  ejected,  he 
cannot  recover  damages  for  humiliation  and  mental  anguish  suffered 
by  reason  of  the  ejection,  but  only  the  expense  of  the  delay  and  the 
price  paid  by  him  for  another  ticket.  Russell  v.  Railway  Co.  (Tex. 
Civ.  App.)  35  S.  W.  724. 

§  326.  1  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Wolfe,  128  Ind.  347,  27  N. 
E.  GOG;  Lake  Erie  &  W.  Ry.  Co.  v.  Fix,  88  Ind.  381;  Cleveland,  C,  C.  & 
St.  L.  Ry.  Co.  V.  Beckett,  11  Ind.  App.  547,  39  N.  E.  429;  Denver 
Tramway  Co.  v.  Reed,  4  Colo.  App.  500,  36  Pac.  557;  Pittsburgh,  C,  C. 
&  St.  L.  Ry.  Co.  V.  Russ,  14  C.  C.  A.  612,  67  Fed.  GG2,  afflrming  6  C.  C. 
A.  597,  57  Fed.  822;  Dancey  v.  Railroad  Co.,  19  Ont.  App.  664.  In 
this  last  case  it  is  said:  "I  do  not  find  that  our  courts  have  yet  gone 
so  far  as  to  hold  tliat  a  passenger  rightfully  traveling  on  his  ticket  is 
bound  to  leave  the  train  at  the  conductor's  order,  at  the  peril  of  not 
being  able  to  recover  damages  for  an  assault  committed  in  expelling 
him  by  force.  He  is  in  the  right,  and  the  company  is  in  the  wrong. 
'No  one  has  the  right  to  lay  hands  forcibly  on  a  man,  in  the  absence 
of  some  legal  authority  to  do  so,'  and  here  there  was  none.  Pushed  to 
its  legitimate  conclusion,  the  argument  must  be  that  no  damages  what- 

(814) 


Cli.  24)  EJECTION.  §  32G 

ticket  oood  for  the  dav  on  wliidi  it  is  Sdld,  but  liv 
mistake  beariuj*  au  earlier  date,  is  not  <ildim'<l,  on  i\t' 
maiid  of  the  conductor,  to  leave  the  tinin  which  In- 
tO(dv  on  tlie  day  of  sale,  and  sue  the  c<>nii>;iii\  tor  l»rra<  h 
of  the  contract  to  can-y,  hut  he  luis  a  li^lii  lo  icsisi 
ejection,  and  recover  (hmia^t's  tlieielur.-  Si»,  a  pas- 
Kenger  lawfully  on  a  train,  who  lias  paiil  the  lawful 
fare  to  the  conductor,  has  the  ritiht  to  olTer  such  re- 
isistance  to  any  attempt  on  the  ])art  of  the  conductor 
TO  remove  him  therefrom  as  may  be  necessary  [n  pre- 
vent his  being-  ejected;  and  if,  in  conseipieuce  of  sucli 
resistance,  extraordinary  force  is  necessary  and  is  used 
to  remove  him,  and  he  is  injured  thereby,  he  nuiy  re- 
cover for  such  injtiry.^ 

^ver  can  be  recovered  for  any  assault  under  sucli  circuiustancos  as  the 
plaintiff  brings  it  upon  himself  by  disobeyiuK  au  order  whit-li.  thou^'h 
unlawful,  he  cannot  effectually  resist;  and,  if  the  argument  is  valid 
in  the  case  of  the  railway  passenger,  I  do  not  see  wiiy  it  sliould  nm 
hold  good  in  the  case  of  any  one  else  wlio  stands  in  danger  of  au  as- 
sault for  noncompliance  with  an  unlawful  order  which  sui)erlor 
strength  stands  ready  to  enforce." 

2  Ellsworth  V.  Railway  Co.  Uowa)  63  N.  W.  .")84. 

3  English  V.  Canal  Co.,  (i<>  X.  Y.  47A;  Zagelmeyer  v.  Raili-oad  Co..  102 
Mich.  214,  60  N.  W.  436.  In  Englisli  v.  Canal  Co.  it  was  said:  "Where 
n  conductor  is  in  tlie  wrong,  the  passengei'  iiiis  :i  right  to  protect  hini- 
.«elf  against  any  attempt  to  remove  him.  and  resistance  can  lawfully 
be  made  to  such  an  extent  a.s  may  be  essential  to  maintain  suili  a 
right.  Cases  occur  where  circumstances  may  impt'ratively  reqidre 
that  the  pas.senger  shoidd  remain  on  tlie  train  <>ii  ji.coimt  of  ..tlieis 
Avho  m:iy  be  in  his  charge,  or  wh.iv  it  is  iudisiH'usabh'  tlial  lie  sliould 
hasten  on  his  journey  without  delay;  and  if,  by  r.asi.n  of  tlu-  willful 
ness  or  mistaken  judgment  of  tlie  conductor,  lif  cotdd  In-  <'xp.-ll.'.l 
when  lawfully  there,  s«'rious  iiijiiiy  might  follow.  Tlif  law  iloi-s  not. 
under  such  circumstMnces.  phicr  ilu'  p.-is-nigi-r  williiii  the  im.w.t  of  Hi.- 
conductor,  and.  wlim  hiwriilly  in  ilic  i  ars,  he  is  aiiliioiizrd  to  vindliati' 

(Sir,) 


§  326  CARRIERS  OF  PASSENGERS.  (Ch.  2i 

On  the  other  hand,  there  are  cases  that  have  been 
decided  on  a  squarely  conflicting  principle.  "When- 
ever there  is  a  reasonable  ground  to  dispute  the  right 
of  the  passenger  to  ride  on  the  ticket  he  has,  it  is 
the  duty  of  the  passenger  to  pay  the  additional  fare- 
demanded  by  the  conductor,  if  able  to  do  so,  and  rely 
on  the  remedy  to  recover  the  amount  before  a  justice 
of  the  peace  or  other  competent  court;  and  damages 
cannot  be  increased  by  an  obstinate  resistance  to  the 
demands  of  the  conductor,  and  by  forcing  him  to  ex- 
pel the  passenger  from  the  train.  The  passenger  can 
take  that  course  undoubtedly,  and  sue  for  damages 
for  a  breach  of  the  contract,  or  of  the  public  duty  of 
the  carrier;  but  his  own  unreasonable  conduct  in  re- 
sisting a  fairly  reasonable  demand  of  the  conductor 
can  be  taken  by  the  jury  as  mitigation  of  damages, 
and  will  reduce  them  to  nominal  or  actual  damages 
sustained  by  the  delay."  *  Thus  it  has  been  held  that 
the  fact  that  a  conductor  fails  to  give  a  passenger  a 
check,  or  any  other  evidence  of  the  right  to  ride  on  a 
train,  on  taking  up  hi,s  ticket,  does  not  justify  the 
passenger  in  resisting  by  force  an  ejection  by  another 
conductor,  w^ho  demands  payment  of  fare  or  presen- 
tation of  evidence  of  a  right  to  ride,  as  required  by 
the  rules  of  the  company.^     So,  it  has  been  held  to  be 

such  right  to  the  full  extent  which  might  be  required  for  his  protec- 
tion." 

4  Gibson  v.  Railroad  Co.,  30  Fed.  904.  To  same  effect,  Chicago,  B.  & 
Q.  R.  Co.  V.  Griffin,  (18  111.  491 »:  Chicago,  B.  &  Q.  R.  Co.  v.  Wilson,  23 
111.  App.  63;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Gants,  38  Kan.  GUS,  17  Pac. 
54. 

5  Townsend  v.  Railroad  Co.,  5G  N.  Y.  205. 

(816) 


Ch.  24)  EJFXTioN.  §  327 

the  duty  of  a  i)assen«ivr  to  pay  an  <X(('ssi\r  fare  w  lieu 
(leiiiaii(l«'(l,  ratliei-  than  invite  an  cxiMilsioii   I'lum   ilic 
train  by  rcfnsinj^  to  rcnnply  wiili   iln-  contltuitu^  dc 
mand." 

§  327.     DISOBEDIENCE  OF    RULES. 

AA'illfnl  disobedience  cd"  the  carrier's  rules  by  a  ]">as- 
seujier  will  justify  the  earlier  in  i-efusinii  lo  iraiisiMUt 
him  further,  but  not  in  malt  i-eaiinu  him  while  con- 
tinuin,ii-  to  j)erform  the  conn  ad  foi-  his  con\eyaiire.' 
Where  a  passenger  takes  a  dou  with  him  inio  i  lie 
passenjier  car,  contrary  to  tiie  iides  of  the  raili-oad 
coini)any,  and  refuses  to  renio\c  iiim  i<i  liie  bajiua^e 
car  when  reijuested,  the  conductor  is  jusiilied  in  re- 
moving both  from  the  cai- in  a  pioper  manner,  thonuh 
the  passenger  has  i)ai(l  his  fare.-  Uut  spitting  on  ih.- 
Hoor  by  a  ])assenger  at  a  station  is  no  i^i-cnind  I'oi-  ex- 
pelling him  from  the  waiting  room,  unhss  lie  hail 
knowledge  of  a  rule  forbidding  it.'     So,  the  faei   thai 

0  Atchi.son,  T.  A:  S.  l-\  It.  Co.  v.  II(ij;(ic.  .Mi  l\:iii.  4(».  ."•.l   I':ir.  tiilS. 
§  ;i27.      1  Hanson  v.  Itanway  Co..  <iL'  .Me.  S4. 

2  Grejrory  v.  Railway  Co.  dowai  c.'.i  .\.  W.  .'•.'.J. 

3  Peoiilc  V.  Mclvay.  4(1  .Mi(  li.  4:','.i.  '.i  .\.  \\".  4sr,,  .\  |  cis  m  i  I'rn  i  ;;  to 
take  iiassage  on  a  train  lias  ilic  i-i;,'!ii  to  ^'o  ii|ioii  the  carrifr-  pn-iii- 
ist's.  within  a  irasonahli'  tinu'  lict'oii'  ilic  ckiu'cIciI  (li|iaiuiif  of  lli*' 
train  on  which  hi>  intciiils  to  jjo.and  to  remain  tlu-rc  iiiilil  liic  (h'p"''mri' 
of  such  train:  Iml  lie  lias  iioi  ilic  li^Mil  to  caicr  ami  iciii.iiii  on  -.\u-\t 
liiciiiiscs  atlcr  liaviii^'  hci'ii  rciiiicstcl  In  leave  liy  ilie  e.a'poialioii.  iiii 
less  he  is  tlieii  iiiteiidiiif,'  to  f^onjioii  tlie  train:  ami  tliei  orpuraiion  lias  a 
rijiht  to  remove  liim  if, after  sneli  reipiest.  lie  relnses  lo  i|ep  irl.  ll.irrls 
V.  Stevens.  '-'A  \1.  TH:  .lolms/in  v.  Kaiin  ad  Co..  ."•!  Iowa,  ■_'.">.  ."><•  .\.  W. 
~t-i:i.  A  wom.-iii  of  ill  re|iiile.  wlio  liail  on  a  prior  occasion  coiidneted 
li(  rself  ill  ;iii  indecent  manner  at  a  passenger  station,  ean  reetivor 
uomiiial   daiiiaj,'es.   at    most,   for  her   n'liiov.-il   from  the  slalioii    In   llie 

V.  1  FKT.C.\K.r.\S. — i'>'2  ^^^O 


§  327  CARRIERS  OF  PASSENGERS.  (Ch.  24 

a  passenger,  who  has  paid  his  fare,  boards  the  train 
or  conveyance  in  a  manner  forbidden  by  tlie  carrier's 
rules,  does  not  autliorize  his  ejection,  after  he  has 
safely  gotten  on  board,  since  his  presence  on  the  con- 
veyance is  rightful,  no  matter  what  the  irregularity 
in  getting  there.*  . 

A  passenger  on  a  street  car  has  no  right  to  ride  on 
the  platform,  in  violation  of  a  rule  of  the  company, 
when  there  is  room  inside;  and  the  conductor,  after 
he  has  requested  the  passenger  to  come  inside,  may 
eject  him  from  the  car  for  his  refusal  so  to  do.^  And 
a,  passenger  who  occupies  two  seats  in  a  car,  in  vio- 
lation of  a  rule  of  the  railroad  company  restricting 
him  to  one,  and  who  displays  a  pistol  when  the  con- 
ductor attempts  to  remove  his  baggage  from  one  of 
them,  may  be  ejected  from  the  train,  though  he  has 
not  interfered  with  other  passengers  in  occupjdng  two 
seats.** 

evening,  several  hours  prior  to  tlie  departure  of  the  train  on  which 
slie  said  she  was  about  to  travel,  where  no  force  whatever  was  used, 
and  she  simply  obej'ed  an  order  to  leave.  Beeson  v.  Railway  Co.,  62 
Iowa,  173,  17  N.  W.  448. 

4  Smith  V.  Railway  Co.  (Com.  PI.)  18  N.  Y.  Supp.  759,  affirmed  138 
N.  ^.  623,  33  N.  E.  1083;  Huerstel  v.  Railroad  Co.,  1  City  Ct.  R.  (N. 
Y.)  134;    Compton  v.  Van  Volkenburgh,  34  N.  J.  Law,  134. 

5  McMillan  v.  Railway  Co.,  172  Pa.  St.  523,  33  Atl.  561;  Ft.  Clark 
St.  R.  R.  V.  Ebaugh,  49  111.  App.  5S2.  The  mere  fact  that  a  pas- 
senger on  a  street  car,  after  being  informed  that  it  is  against  the 
rules  to  smoke  on  the  car.  proceeds  to  fill  his  pipe,  does  not  authorize 
his  ejection,  where  he  does  not  light  it.  Denver  Tramway  Co.  v.  Reed, 
4  Colo.  App.  500,  36  Pac.  557.  A  passenger  may  be  ejected  for  per- 
sisting in  talking  with  the  driver,  in  violation  of  the  company's  rules. 
Com.  V.  Mans^fleld  (Pa,  Com.  PI.)  29  Leg.  Int.  124. 

6  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Moody,  3  Tex.  Civ.  App.  622,  22  S.  W. 
1009. 

(818) 


^ll-   24)  EJECTION.  §  3 28 

§  328.     DISORDERLY  CONDUCT. 

The  use  of  iudeeent  or  profaue  lanjiuajic  in  a  inil>li( 
conveyance  will  authorize  the  ejection  of  iIm-  passi'u- 
gei'  using-  it  ^^'hen  indecent  or  jMulaiu'  hin.una.i:»'  is 
being  used  on  a  car,  it  is  the  conductor's  duty  lo  clicrk 
it,  and  he  will  be  guilty  of  a  brearli  i.f  <liiiy  if  he  fails 
to  do  so.  And  if,  in  a  car  tilled  with  i>assengt'rs,  near- 
ly one-half  of  whom  are  women,  a  man  in  rarm'st 
conversation  undertakes  to  emphasize  his  statmi.-nt, 
as  some  men  are  apt  to  do,  by  saying,  "liy  (lod,"  ii  is 
so,  or  '*By  God,"  it  is  not  so,  the  law  makes  it  the  duty 
of  the  conductor  to  check  him;  and  if  ihc  hitter  de- 
nies his  guilt,  and,  u])on  being  assnreil  Itv  ilir  con- 
ductor that  he  was  guilty,  tlies  into  a  pa.ssioii,  and 
calls  the  conductor  a  "damned  liar,"  he  may  be  right- 
fully removed  from  the  car;  not  as  a  i)unislinn'nt  for 
his  insult  to  the  conductor  as  an  individual,  but  to 
vindicate  the  authority  of  the  law,  which  forltids  the 
use  of  such  language  in  a  cai',  or  any  «»lh(i-  public 
place  where  women  and  children  have  a  right  lo  be.' 
But  it  has  been  held  that  mere  use  of  indecent  and 
vulgar  language  is  no  ground   for  ejecting  a   passeii 

§  328.  1  Roljinson  v.  Rai'.wny.  S7  -Mf.  :  S7,  ."{li  All.  '.I'Jl.  A  pa  s  uuc-r 
who,  witliout  lea.souable  piovoc  atiuu,  willlully  ami  in  aiip-r  calls  tlif 
couUuctor  a  liar  in  thi>  lirt'sciico  and  licariiiji  of  oiIht  passciipTs.  Is 
guilty  of  disorderly  cuudiKt,  and  may  he  cjctifd.  i;ads  v.  Kallway 
Co.,  43  Mo.  Ai)i).  ."»3(;.  '1  111-  ('.^action  of  a  IrilliiiK  sum  as  fan',  wlilcli 
bad  already  bc-eu  [laid,  doi-s  ikj)  justify  tlie  use  of  Ki"»issly  pruniiu'  niul 
oli.-coue  lanj^ua^e  by  a  pass'iijier  iu  tlu'  iireseiice  of  feinalr  pa^-sfup'rs; 
and  the  conductor  may  riKldfully  cxiiel  iilm  from  tlie  car.  riilcan.i. 
B.  iV:  <J.  K.  Co.  V.  Crilliii.  <;s  111.  VM.  fcjee,  also,  Tcciilc  v.  Caiyl,  ;{ 
Parker,  Cr.  It.  (\.  \.)  3_'U. 

(SI  9) 


§  329  CARRIERS  OF  PASSENGERS.  (Ch.  24 

ger,  unless  in  a  voice  siiffiiientlj  lond  to  attract  the 
attention  of  other  passengers,  and  to  annoy  and  dis- 
turb them.'' 

A  father  is  not  responsible  for  the  acts  of  an  adult 
son,  with  whom  he  is  traveling;  and,  if  the  son-  be 
guilty  of  misconduct  justifying  his  expulsion  from  the 
train,  this  will  not  justify  the  conductor  in  ordering 
the  father  to  leave,  or  in  ejecting  him,^ 

§  329.     SAME— INTOXICATED  PERSONS. 

When  the  conduct  of  a  passeuger  on  a  railroad  train 
is  such  as  to  alarm  or  insult  the  other  passengers, 
interfere  with  the  management  of  the  train,  or  endan- 
ger the  safety  of  passengers  or  those  in  the  charge 
of  the  train,  it  is  not  only  the  right,  but  the  duty,  of 
the  conductor  to  eject  him,  and  the  company  is  not 
liable  for  any  injury  that  may  result,  provided  no  more 
force  is  used  than  is  reasonably  necessary;  an<l  this 
rule  applies  to  au  intoxicated  passenger,  although  he 
may  not  be  able  to  take  care  of  himself,  and  although 

-  Cliicayo  City  lly.  Co.  v.  rcllctier.  i:i4  HI.  lliO.  24  X.  E.  770;  Id.. 
o.']  111.  Api).  4."'>.").  The  r.-ict  that  a  lassengor,  in  the  heat  of  passion, 
produced  by  an  aeeusatiou  of  the  eondnetor  that  he  has  not  paid  his 
fare,  uses  ol:.seeue  and  profane  lanynaj^e  in  the  presence  of  ladies,  does 
not  con.'-titute  a  ground  for  ejecting  him.  The  wrong  eonunitted  by 
the  pas.>-enger  was  provoked  by  the  conductor,  and  flie  company  can- 
not avail  itself  of  that  wrong  as  a  defense  for  his  ejection.  Louisville, 
N.  A.  &  C.  Ky.  Co.  v.  Wolfe,  IL'S  Ind.  ;!47.  --'7  N.  E.  (JOi  A  passeuger 
Avho  is  a  stranger  waiting  at  a  depot  for  a  train  between  1  and  4  a.  m., 
and  who,  after  failing  to  tind  the  gentlemen's  water-closet  outside  the 
nuiin  depot  building,  impelled  by  necessity,  has  resort  to  the  water- 
closet  intended  and  designated  for  ladies  only,  is  not  guilty  of  dis- 
orderly conduct.      King  v.  Railroad  Co.,  ti'.t  :Miss.  24r>,  10  South.  42. 

3  Louisville  iV;  N.  IJ.  Co.  v.  ^layl.in,  CO  Ml.^s.  s:!,  5  South.  401. 

(820) 


Ch.  24)  EJKCTioN.  §  329 

he  was  kiiown  to  he  intnxicatctl  when  icccivcW  ;is  a 
passeng;ei'.^  So,  a  i)assoiiji(*i-  sutTci-in^  fi-uiii  (Iclirimii 
tremeiis,  whose  coiHliict  occasions  sciioiis  aiiuovaiicc 
and  discomfort  to  his  fellow  p.-isscii^cis.  iii;iv  he  re- 
moved." The  faci  tliai  «»n  iciiioviim  an  iiiio\ic;ilc<l 
l)asseiiger  from  a  passenger  coa(  ii  iIh-  ir;iiii  hands,  as 
an  act  of  kindness,  jthuM' him  in  a  baggage  car,  in  w  liicii 
he,  withont  objection,  rith's  to  his  destimii  ion.  -ives 
him  no  riglit  of  action  against  the  conipanv.  So,  ihe 
mere  fact  that  n  passenger  was  known  io  l»e  inioxi- 
oated  when  he  entereil  the  car  <h>es  n<il  pichnh-  the 
conductor  from  afterwards  expelling  him,  when  his 
conduct  becomes  disorderly.' 

Bnt  a  rnle  of  a  raili-oa«l  conipanv  forhithling  the 
transportation  of  intoxicated  or  lilih.v  persons  does 
not  justify  the  ejection  of  a  passenger  alllicied  with 
St.  Vitus'  dance,  which  piodnce*!  in\  «.lnnl:iiy  nioiions 
somewhat  resembling  the  movements  of  ;iii  inioximie.j 
pers(m.  The  carriei-  jndges  at  its  jteril  ;is  to  the  ap- 
l)lication  of  snch  a  rnle  in  a  given  case,  and.  if  it  eri-s, 
it  is  answerable  for  its  mistake,  or  that  of  its  seixani, 
acting  under  its  authority."' 

§  ;i21l.  1  l-ouisvillc  .V-  N.  It.  <■<'■  V-  I.o.i-'iiii.  ss  K\ .  j.".!'.  M  S.  W.  i;.V.. 
A  passenger  who  gets  on  a  train,  ilriiiik.  ami  aih  i>cs  ..ilicr  pasM-imrrs 
not  to  pay  their  fare,  is  gniliy  of  (lisdnl.-iiy  r..n«ln.t.  aixl  may  Ik- 
ejected.  Baltimore.  1'.  *:  C  U.  Co.  v.  .M.l  >..iiai.i.  f.s  In  I.  Mi>.  A 
carrier  may  expel  a  jiassenger  who  is  drnnk.  an.l  .l.'iu.ans  liiinself 
so  as  to  interfere  with  th  •  conirnii  ui  \hr  .mIht  passi'ng.'rs.  I-M>;erly 
V.  Railroad  ('o.  (N.  Hi  ::<■>  All.  .-.r)S.      S.  .-.  also.  ante.  «  IIJ. 

:;  Atchison,  T.  c^t  S.  l'.  \L  Co.  V.  W.  l-r.  :::;  Kan.  :>i:',.  r,  I'ar.  S77. 

••t  Sullivan  v.  Uailrnad  Co..  1  is  .Ma^s   II'.'.   1^  -N.  K-  •"'T^- 

4  Louisville  &  N.  U.  Co.  v.  I,oj:an.  ss  Ky.  -'.IJ.  l«i  S.  W.  r..V.. 

5  Kegner  v.  Itailroad  Co..  7  1  lino.  U'-j.  •_•<;  N.  V.  Su|.|.   "i.:. 

(N2I) 


§  331  CARRIERS  OF  PASSENGERS.  (Ch.  24 

§  330.     SAME— OVERT   ACTS. 

A  conductor  is  not  boimd  to-wait  until  some  overt 
act  of  violence,  profaneness,  or  other  misconduct  has 
been  committed  by  an  intoxicated  passenger,  to  the 
inconvenience  or  annoyance  of  other  passengers,  be- 
fore exercising  his  authority  to  exclude  ,or  expel  the 
offender;  but  he  may  do  so  whenever  acts  of  impro- 
priety, rudeness,  indecency,  or  disturbance  appear 
either  inevitable  or  probable/ 

§  331.     SAME— STATUTE  AUTHORIZING  EJECTION 

OR  ARREST. 

In  many  states,  statutes  exist  authorizing  the  ejec- 
tion of  passengers  for  disorderly  conduct.^  In  still 
others,  conductors  are  vested  Avith  power  to  arrest 
disorderly  passengers."    It  lias  been  held  that  the  pow- 

§  330.  1  Ylutoii  V.  Kailroad  Co..  11  Allen  (Mass.)  304;  Lemonl  v. 
Railroad  Co.,  1  Maekey  (D.  C.)  ISO. 

§  331.  1  Code  Ala.  §  115(>;  Rev.  St.  111.  c.  114,  par.  94;  2  Starr  & 
C.  Ann.  St.  p.  1944,  par.  94;  Rev.  St.  Ind.  ISSM,  §  5182  (Rev.  St.  Ind. 
1881,  §  •i922);  Ky.  St.  1894.  §  SOG;  Ann.  Code  Miss.  1890,  §  35(>3r 
Comp.  Laws  N.  M.  1884,  §  2G05,  snbd.  13;  Rev.  St.  Ohio  1890,  §  34.34: 
1  Rev.  St.  S.  C.  1893,  §  1718.  Ann.  (^ode  Miss.  1890,  §  4313,  empowers 
station  agents  to  preserve  order,  and,  if  necessary,  eject  any  person 
whose  conduct  is  boisterous  and  offensive. 

2  Rev.  St.  Ind.  1894,  §§  1771,  .■■)18.3,  .")184  (Rev.  St.  Ind.  1881.  §§  1702. 
.3923,  .S92-1);  (Jen.  St.  Kan.  1889.  rars.  2378,  2379;  Rev.  St.  Me.  1883, 
p.  482,  c.  .".1.  SS  73.  74;  Rev.  St.  Mo.  18.S9,  §§  3830,  3831;  Pub.  St. 
N.  H.  1891,  p.  4.^3.  §  8;  Rev.  St.  Ohio  1890,  §  3433;  Code  W.  Va.  1891, 
p.  907,  §  31;  Sanb.  &  K.  Ann.  St.  Wis.  §§  1817a,  4598a.  Laws  N.  Y. 
18(i3.  c.  34(».  autliorizes  railroad  and  steamboat  companies  to  employ 
policemen  for  dnty  at  stations.  Laws  N.  Y.  1880,  c.  223,  authorizes 
the  governor  to  appoint  all  or  any  conductors  and  brakemen  on  trains 
jiolice  ofticers,  with  the  usual  power  of  such  otticers. 
(S22) 


^'^^-   2"^)  EJECTION.  §    332 

or  to  arrest,  conferrecl  bv  stntiitr,  w:is  inicn.l.'.l  to  .nii 
fer  additional  powers   ou   railroad   (.llicials,   and   imt 
to  take  away  tlieir  eominon  law  ri<;Iit  t..  nmovr  a  pas 
senger  who  is  noisy  and  disorderly,  to  tin-  annoyance 
of  the  other  passengers.'     In   tin-  ahsi-iito  (.f  sncli  a 
statute,  it  has  even  been  ludd  that,  wli.-n-  a   nnmb.-r 
of  passengers  on  a  train  are  gnilty  of  disonb-rly  <(.n- 
dnet  and  a  continnons  breach  of  the  jx^aee,  and   ih.- 
conductor  is  unable  to  expel  them  from  the  ti;iin  b\ 
reason  of  their- superior  physical  force,  he  has  a  ri^ht 
to  cause  their  arrest  by   a    iiolice  ollicer,   withont    a 
waiTant,  as  soon  as  the  train  arrives  at  a  station.     Thr 
fact  that  they  were  guilty  n.erely  of  a  niisd.'mcnnor. 
and  that  no  warrant  was  procnicd   for  th.ii-  ainst, 
will  not  render  the  company  liable.* 

§  332.     PLACE  OF  EJECTION. 

At  common  law,  and  in  the  absence  of  siainte.  one 
wrongful!}'  on  a  train  may  be  e\]ieII<Ml  at  anv  point 
not  dangerous,  and  the  condnctitr  is  not  ie<|uir.d  in 
wait  until  a  station  is  reached.'     The  lad  that   iIht.- 

3  Sullivan  v.  Railroad  Co..  14S  Mass.  int.  is  X.  H.  CTS.  Sw,  al8o. 
§  312.  To  be  drunk  in  the  waiting'  liKHii  ol  ;i  (lr|i,.i  .i  imlilic  place— Is 
disorderly  conduct,  within  Rev.  St.  Te.\.  1S7!>,  art.  'Mui,  wlilch  aiillior- 
izes  arrests  for  disorderly  comluct  witlimit  a  warrant.  Trait  v. 
Brown,  80  Tex.  GCtS,  IG  S.  W.  44.;. 

4  Kaltiraore  &  O.  R.  Co.  v.  Cain.  SI  Md.  s;.  :n  Atl.  sni. 

§  .332.  1  Louisville  iV  X.  K.  Co.  v.  .Inlm-uii.  '.ij  Al.i.  Jni.  u  .Soiitli 
2f;(»;  Everett  v.  Railroad  Co.,  CU  Iowa.  i:..  js  X.  W  .  Hit;  Mrown  v. 
Railioad  Co.,  .j1  Iow.i.  2.''m"».  1  X.  W.  1^7:  .Soiilliciii  Kjui.  Itv.  Co.  v. 
Hinsdale.  38  Kan.  r,(i7,  KJ  I'ac  '.•.■f7;  .M.lilson,  '1'.  A:  S.  T.  U.  C...  v. 
(Jants,  38  Kan.  (iOS,  17  I'ac.  .">4:  .McChin-  v.  Itallnuid  Co.,  .'M  .Md.  .'i.'ll'; 
Great  Western  Uy.  C<>.  v.  .Miller,   I'.t  .Mi<li.  .M.'.;    \N  ynian  v.  Kallnuid 


§  332  CARRIERS  OF  PASSENGERS.  (Ch.  24 

is  a  storin  tlireateiiiiiii,  aiul  a  possibility  tliat  a  tres- 
passer, if  ejected,  will  be  caiiiilit  in  it,  does  not  re- 
quire that  he  be  put  off  only  at  a  regular  station.-  So, 
one  traveling  on  a  passenger  boat,  Avho  neither  pro 
duces  a  ticket  nor  pays  fare  when  called  upon,  and 
who,  after  being  informed  that  if  he  does  not  pay  his 
fare  he  will  be  put  on  shore,  and  is  allowed  a  reason- 
able time  to  deliberate,  and  who  then  suffers  himself 
to  be  landed  on  a  shore  to  which  he  is  a  stranger,  at 
a  iKiint  distant  from  any  habitation,  during  a  storm, 
in  the  night,  rather  than  pay  50  cents  to  complete 
the  journey,  although  possessed  of  ample  means  to 
pay,  is  without  any  just  cause  of  complaint,  and  can 
not  recover  damages  from  the  vessel  owner/' 

But  where  a  person  is  not  a  trespasser, — as  a  pas- 
senger who  declines  to  pay  fare  because  no  seat  is 
furnished  him, — the  carrier  nivist  exercise  its  right  of 
ejection  at  some  regular  station  on  its  road;  other 
wise  it  will  be  liable  therefor.*  So,  it  has  been  held 
that  a  commuter  who  has  mislaid  his  ticket,  and  who 
cannot  produce  it  on  request  of  the  conductor,  as  re- 
quired by  the  terms  of  the  ticket,  can  be  ejected  only 
at  a  station,  and  his  ejection  between  stations  by  a 
conductor  who  knows  that  he  is  a  commuter  renders 
the  company  liable.^ 

Co..  o4  Minn.  210.  2.",  X.  W.  34i);    Kallroad  Co.  v.  Skillman.  39  Ohio 
■  St.  444;    Moore  v.  Itailroad  Co..  3S  S.  C.  1,  1<>  S.  E.  781;    Rudy  v.  Rail- 
way Co..  8  Utali.  1(J5.  :;!0  Tac.  3!J(J. 

2  Biircli  V.  Rai'iAvay  Co.,  3  App.  D.  C.  34G. 

3  Magee  v.  Navigation  Co..  40  Fed.  734. 

•i  Hardeubergli  v.  Railway  Co..  3'J  Minn.  3,  38  N.  W.  025. 
5  Maples  V.  Railroad  Co.,  38  Conn.  557. 
(S24) 


Ch.  24)  EJECTION.  §  333 

§  333.     SAME     STATUTORY  REQUIREMENTS. 

Statutes  in  many  of  the  srat«'s  iv<|uin'  ejection  to 
be  made  at  a  usual  stopiiiuii  i)lai('  nr  near  sumc 
dwelliuo-  honse.^  These  statutes  ar<'  i-cstri<tivr  nf  ilw 
common  law,  and  l».v  necessary  inipliraiion  inithihii 
the  passenger's  expulsion  at  any  ])lacc  other  than  those 
tixed  by  statute."  This  rule  holds  uood,  ihou^^li  llie 
next  station  is  th<'  jiassenjici's  destination.'' 

By  "usual  sToi)j)ino-  place"  is  meant  either  a  reirnlar 
station,  or  any  other  phiee  which  a  raili(»a<l  coiiiitaiis 
expressly,    by    public    notice   or   otherwise,   or    iinjili- 

§333.  1  Maii.'^l.  Di}.'.  Ark.  S  .'1474:  Civ.  Cuik' Cat.  §  lilss;  C.-ii.  Si. 
Conn.  1888,  §  3541;  ("oiiii).  Laws  Dak.  IsM.  S  8s:iT;  M^'W  St.  Kla. 
1S92,  §  2267;  Rev.  St.  Iii.l.  1S!I4.  §  .'.isi  (U,.v.  Si.  lii.l.  issi.  s  .•■.:»_-i,: 
<'iv.  Code  Mont.  ISlt.j,  §  28'J8;  Gen.  St.  Nev.  IsS-l.  $  s,s:5:  i  n..\v.  Ami. 
.''I.  Mich.  §  3:^70;  Kev.  Sf.  Mo.  188i».  §  2.:.sl ;  licvision  N.  .1.  !•.  '.'.•fJ.  S 
113;  Laws  N.  Y.  1850.  c.  140,  §  35;  Cude  X.  C.  iss:',.  s  r.";2:  2  C..iii|.. 
Laws  Utali  1888.  p.  32,  §  2354;  Sanlt.  A:  B.  Aim.  St.  Wi.x.  S  Isis.  Ai 
any  regnlar  si.itii.u.  Tub.  St.  H.  L  \>.  4<';i.  ,-.  \r,s.  s  :;j;  V,  S.  is.M.  « 
3L»15.  AYithin  tivc  niilis  of  a  station,  Couip.  Laws  Neb.  ts;(;;.  p.  .-.Im, 
§  107. 

a  Pliettiplace  v.  Railroad  Co..  84  \Vi«;.  412.  .".4  N.  W.  in.rj;  15 n-lini 
V.  Railway  Co..  01  Wis.  .">02,  U5  X.  W.  ."»i>;:  Ni(li..ls  v.  Uaiiway  Co.. 
7  Utah,  510.  27  I'ac.  OIC!;  Durfec  v.  ItaiAv.iy  C...  O  liali.  Jl.:.  :!;:  I'ar. 
044;  Stephen  v.  Sniila.  20  Vt.  KHt;  Uliuuis  (Viii.  U.  Cci.  v.  Siiltttii,  5;; 
111.  307;  Chicajro.  K.  \-  (,».  K.  Co.  v.  I'.iiU-;.  is  III.  I'.i";  'I'.-in-  Ilautc. 
A.  &  St.  L.  R.  Co.  V.  \  aiialla.  21  111.  IM. 

3  St.  Loui.s,  1.  M.  \-  S.  Ky.  v.  Itrandi.  4r>  Ark.  .".24.  .\  suiicnuiil  hy 
a  pa.sseuger,  who  refuses  to  pay  rare  iliai  li<'  will  ;:ii  "H'  it  ihf  con- 
ductor will  stop  the  tniin.  is  n«i  justilicalimi  fm-  his  l(»rcili"e  e.\i)Ul.s:ou 
by  the  conductor,  after  the  train  cihiics  i..  a  siaii  Islill.  and  he  refuses 
to  get  off,  at  a  place  oilier  man  a  regular  siaiioii.  Chhago  \  X.  W. 
Ky.  Co.  V.  Peacock,  48  111.  2.-.::. 

(825) 


§    333  CARRIERS   OF   PASSENGERS.  (Ch.    24 

edly,  by  use  for  such  purposes,  has  designated  as  a 
proj)er  place  for  passengers  to  get  on  or  off  its  trains^ 
and  where  tliey  would,  in  consequence  thereof,  have 
the  right  to  demand  the  exercise  of  this  privilege/ 
So,  the  term  "regular  station"  in  such  a  statute  means 
a  place  on  the  railroad  where  passenger  trains  usually 
stop  for  the  purpose  of  having  passengers  get  on  or 
off  such  train,  and  not  the  town  or  village  in  which 
a  railroad  company  may  have  its  passenger  and  depot 
building.  A  railroad  company  does  not  comply  with 
the  statute  when  it  puts  a  passenger  off  at  a  point 
on  its  track  distant  from  a  fourth  to  a  half  of  a  mile 
from  its  depot  platform,  even  though  sncu  point  be 
within  the  corporate  limits  of  the  village  or  city  where 
such  depot  is  located,^  But  under  a  statute  which 
authorizes  an  expulsion  "near  a  dwelling  house,"  the 
fact  that  the  occupant  is  temporarily  absent,  and  the 

4  Texas  &  P.  R.  Co.  v.  Casey,  52  Tex.  112.     A  water  tank,  about 
■  a  quarter  of  a  mile  from  a  station,  is  not  a  "rei;iilar  stopping  place," 

within  the  meaning  of  the  statute.  The  statute  means  the  usual  stop- 
ping place  for  the  discharge  of  passengers.  Chicago  &  A.  R.  Co.  v. 
Flagg.  43  111.  364.  A  pasrsenger  station,  within  the  meaning  of  such 
a  statute,  must  at  least  be  a  stopping  place  wliere  passenger  tickets 
are  ordinarily  sold.    Baldwin  v.  Railway  Co.,  04  N.  II.  .jOO,  15  Atl.  411. 

5  Illinois  Cent.  R.  Co.  v.  Latimer,  12s  HI.  m\,  21  N.  E.  7.  In  an  ac- 
tion for  putting  a  six  year  old  child  off  the  train  about  half  a  mile 
from  the  depot,  hut  Avithin  the  corporate  Imiits  of  the  town,  evidence 
that  another  train  Avas  expected  to  arrive,  witliin  a  feAv  minutes,  at 
the  place  of  the  remoA'al.  is  competent,  on  the  question  whether  it 
was  proper  or  improper  for  tlie  coniluc-tor  to  make  the  remoA'al  at 
that  particular  point.  Id.  But  a  passenger  on  a  freight  train  may 
be  ejected  at  the  usual  point  adopted  for  that  mode  of  traA'el,  and  the 
train  need  not  be  draAvn  up  at  the  passenger  platform.  Illinois  Cent. 
R.  Co.  V.  Nelson,  50  111.  IIU. 

(826) 


Ch.  24)  EJFXTION.  §  ?.33 

house  closed,  does  not  reuder  it  wrongful  for  a  con- 
ductor to  expel  a  passenger  there/ 

These  statutes  do  not,  however,  apply  to  one  who 
rides  on  a  freight  train,  in  violation  of  tin-  coinpany's 
rules,  and  he  may  be  ejecte<l  at  a  jdaro  oilier  than  a 
station."  So,  where  the  statute  fixing  the  plat  o  of 
ejection  applies  onl}^  to  the  noni>aynuMit  of  fare,  a 
passenger  expelled  for  other  causes  than  the  noiipay 
ment  of  fare  may  be  expelled  at  any  convenient  and 
safe  point  on  the  road.'* 

6  Patry  v.  Kaihvay  I'o..  77  Wis.  21S,  4(j  N.  W.  oi;.  To  put  »>ft'  a 
passenger,  on  a  daik  nij;lit.  witliin  25  or  30  rods  of  u  thvelliiif;  houst'. 
of  whose  location  he  is  ignorant,  cannot  be  said,  as  matter  of  law,  to 
be  a  compliance  with  the  statute.  Loomis  v.  Jewett.  :{.">  Ilun  (N.  Y.) 
."JIS.  Where  a  passenger,  luiable  to  read,  shows  her  ticket  to  the 
brakeman  of  a  train  belore  boarding  it,  and  he  assists  her  ou  the 
train,  and  the  conductor,  on  taking  up  her  tickc^t.  discovers  that  hers 
is  issued  by  another  road,  and  not  good  on  his  train,  it  is  tin-  duty 
of  the  company  either  to  return  lier,  without  Iharge,  to  the  place 
Avhence  she  started,  or  to  leave  her  at  .some  other  point,  where  she 
can  most  speedily,  conveniently,  and  ^afely  reach  a  train  on  the  other 
road  which  will  take  her  to  destination.  If,  on  the  other  liiind.  she 
failed  to  show  the  ticket  to  the  brakeman  or  any  otlur  employ<^"  of  the 
road,  and  got  on  the  train  by  reason  of  her  own  ndsiak*',  then  slie 
was  wrongfully  on  the  train,  and  could  be  expdk'd  for  noniKiymmt  of 
fare  "at  any  usual  stopiting  place,  or  near  any  thvclling  house." 
Patry  v.  Railway  Co.,  77  Wis.  218,  4G  N.  W.  5G;  Id.,  82  Wis.  4Ci8,  52  N. 
W.  312. 

7  Hobbs  V.  Railway  Co.,  49  Ark.  357,  5  S.  W.  r.S»!. 

8  South  Fla.  U.  Co.  v.  Rhodes.  25  Fla.  40,  5  South.  tuVA.  Thou;;h.  as 
a  general  ruh",  a  person  not  lawfully  on  a  train  can  be  expelled  only  at 
a  regular  station,  yet  one  who  has  been  thus  e.\|  cllcd,  and  ulm  again 
leaps  on  the  train  as  it  is  pulling  out  of  a  >tatioii.  occtijiles  (pilie  a 
different  position  from  that  of  a  person  who  enters  the  cars  under  a 
mistaken  notion  that  he  has  a  right  to  do  .so.  ("lilcago,  R.  A:  c.>.  R. 
Co.  V.  Boger,  1  111.  App.  472.  In  ;in  ad  ion  for  eject  Ing  a  iiass«'iiger 
at  a  point  other  than  a  regular  stopi)ing  place,  the  cuurt  cannot  pre- 

(S-JT) 


§  833  CARRIERS  OF  PASSENGERS.  (Cll.  24 

In  Indiana  it  has  even  been  held  that  a  statute  which 
provides  that  a  passeu«;er  refusiui;  to  pay  fare  "may 
be  ejected  at  any  usual  stopping  place"  is  permissive 
only,  and  hence  that  a  passenger  may  be  ejected  for 
nonpayment  of  fare  at  a  place  other  than  a  usual 
stopping  place.-'     So  it  has  been  recently  held  that 

sume  that  the  Utah  statute,  or  oue  similar  to  it.  reiiuiriug  passeugers 
to  be  put  off  at  a  regular  stopping  place,  is  iu  foree  iu  Colorado,  where 
the  ejection  took  place,  but  the  presumption  is  that  the  common  law- 
is  In  force  there.     Rudy  v.  Railway  Co..  8  I'tah.  1<;5,  30  Pac.  366. 

«  Baltimore,  P.  &  C.  R.  Co.  v.  McDonald,  (!8  lud.  316;  Toledo,  W. 
&  W.  Ry.  Co.  V.  Wright.  Id.  ."S(j;  Jefftrsouville  R.  Co.  v.  Rogers,  28 
lud.  1.  This  astonishing  conclusion  was  reached  by  the  following 
process  of  reasoning:  "Is  it  meant  by  this  provision  of  the  statute 
that  a  man  n^ay  get  on  a  tiain  at  one  station,  and  refuse  to  pay  fare, 
and  cumpel  the  railroad  company  to  carry  him  to  the  next  station  be- 
fore he  can  be  put  off?  And  that  he  can  thus  get  on  the  train,  when 
it  is  moving  out.  and  again  refuse  to  pay  fare,  and  compel  the  com- 
pany to  carry  him  to  the  next  station,  and  so  on.  to  the  end  of  the 
road:  Such  a  const-ruction  and  interpretation  of  the  statute  woiild. 
to  say  the  least,  make  it  very  inconveuit'nt  for  railroad  corporations. 
iu  many  instances  to  collect  any  fare  whatever.  A  better  and  more 
rational  interpretation  of  tiie  statute  is  that  it  was  intended  by  the 
legislature  to  be  a  police  regulation,  for  the  purpose  of  protecting  the 
public  from  the  dangers  of  freipunt  and  unnecessary  stopping  of 
trains  between  stations,  or  the  peril  to  tlie  traveling  public  consequent 
upon  the  increase  of  speed  necessary  to  regain  time  lost.  But.  if  a 
passenger  refuses  to  lay  fare,  he  has  no  right  to  complain  for  being 
put  off  the  train,  for  the  reason  that  such  refusal  to  pay  fare,  on 
proper  request,  makes  him  an  intruder  or  wrongdoer  from  the  begin- 
ning." Baltimore.  P.  &  C.  R.  Co.  v.  McDonald,  <j8  Ind.  310.  In 
Illinois  Cent.  R.  Co.  v.  Whittemore,  43  111.  420,  it  was  held  that  the 
statutory  requirement  that  lasseugers  refusing  to  pay  fare  be  expelled 
at  a  regular  station  does  not  apply  to  a  passenger  who  has  purchased 
a  ticket,  and  refuses  to  surrender  it  to  the  conductor  on  demand.  In 
such  a  case  the  company  may  at  once  expel  him  from  the  train,  using 
no  more  force  than  may  be  necessary  for  that  purpose,  aud  not  select- 
ing a  dangerous  or  inconvenient  place. 
(S28) 


Ch.  24)  EJECTION.  §  334 

a  railroad  passenger  eariitHl  bcyoiul  ilu-  jM.int  of  des- 
tination is  still  entith^l  to  lu-  tr«'at«Ml  as  a  i)assfn"tT- 

I  r^  * 

but,  unless  tJie  (iccni-rcncc  wns  due  to  tlic  fault  ..r 
neolio-euc-e  of  the  cai'iicr,  it  is  cut  it  I. -d  to  .olltMt  faiv, 
and,  on  refusal,  may  liuhl  fully  ('jcci  iIh-  iiass«'n«;er, 
Avho  lias  no  rijilit  to  (hMiiaiHJ  t<.  be  canicd  to  n  station. '" 

§  334.     MODE  OF    EJECTION. 

One  who  is  unlawfully  on  a  naiii  may  be  cxneilcd 
without  unnecessary  force:  and,  th(»u-li  injury  i-esults, 
he  has  no  right  of  action  11  excessive  foico  was  n(»t 
used.^  ]-\)rce  may  be  used  to  comjx'l  excn  a  IVmale  jias- 
senger  who  refuses  to  pay  fare  to  have  the  train.-      It 

10  Scott  V.  Railway  Co.,  144  Ind.  IL'.").  a:\  X.  i:.  i::.!. 

§  334.      1  (Iro^'au  v.  Railway  Vo..  3!)  W.  Va.  41."..  lit  S.  E.  .%3. 

2  Chicago.  K.  I.  &  P.  H.  Co.  v.  H.mtIii^'.  .".7  111.  .")!».  '-This  is  not  a 
<Iuestioii  of  jrallautry  or  sox.  but  siiiiiily  of  li';,'al  ri;;lit.  ami,  as  iln- 
Iilaintiff  confessedly  declinetl  to  pay  her  fare,  the  coiniiauy  was  uiuler 
no  oliligation  to  cari-y  her.  and  liad  a  ri;rlit.  Iiy  its  afrciits.  ti»  um'  all 
the  force  required  to  remove  her.  It  would  lie  i)reiio>terous  to  de- 
mand of  railway  companies  that  they  should  iierunt  all  women  who 
decline  to  pay  their  fares  to  travel  tmniolcslcd  in  their  cars,  or  that 
force  should  not  be  used  to  expel  them,  if  ibey  should  .so  far  uuscx 
themselves  as  to  make  a  re.sort  to  for<e  necessary."  Id.  Civ.  Code 
Cal.  §  488,  which  re<iuires  every  conductor  to  wt  ar  a  bailee,  and  whlrh 
jirohibits  him  from  collectinj;  fare  witliout  smb  1  ad^c,  is  i»ot  In 
tended  to  limit  the  power  of  the  corporation  in  tin-  conduct  of  its  iiu>l 
ness,  but  it  is  for  the  protection  of  iiassengers;  and  a  pas.senpT 
who  recognizes  a  conductor  as  sin  b,  .-iiid  lirats  wiili  biiii  iis  such  as  to 
tJH'  proper  amount  of  laic,  mnsl  ])lace  ln-r  refusal  to  pay  llie  fare  de- 
manded, or  to  cumpl.v  witii  bis  direclions,  on  the  ground  tliat  he  Is 
without  his  badge,  so  that  he  may  obviate  Ihe  ob.|e(tlon;  ami.  after 
she  is  excluded  from  tlie  car  for  refus.al  to  pay  the  regular  fiu-e.  she 
cannot  afterwards  lie  bciiil  to  olijrr  i  ib.it  tlic  iniuluitui-  was  witboul 
his  badge.      Cox  v.  Haiiw.iy.  Ui'.M.il.  luii,   n  I'ii.-.  T'.M. 

(820) 


§  334  CARRIERS  OF  PASSENGERS.  (Ch.  24 

has  been  held  in  a  recent  Southern  case  that,  if  a  white 
passenger  is  wrongfully  ejected  from  the  train,  the  fact 
that  a  colored  train  hand  was  called  upon  to  assist  in  so 
doing  will  not  make  the  company  liable  for  greater 
damages  than  should  be  recovered  if  the  train  hand  had 
been  a  white  man.  ^ 

But  in  exercising  a  legal  right  of  ejection  railway 
companies  must  not  do  so  in  an  abusive  Avay.  They 
are  the  servants  of  the  public ;  and,  while  their  right 
to  enforce  reasonable  regulations  will  be  upheld,  yet 
the  regulations  must  not  only  be  reasonable  in  them- 
selves, but  the  manner  and  method  of  enforcing  such 
regulations  must  be  reasonable,  and  free  from  un- 
necessary force,  as  well  as  from  unnecessary  indig- 
nity.* If  a  conductor  uses  unnecessary  force  in  eject- 
ing a  passenger,  the  company  is  liable,  although  the 
conductor  may  have  a  right  to  eject  him,  and  to  em- 
ploy reasonable  force  to  expel  him  from  the  train.' 

3  Central  Railroad  &  Banking  Co.  v.  Strickland,  90  Ga.  562,  16  S.  E. 
352. 

4  Memphis  &  C.  R.  Co.  v.  Benson,  85  Tenn.  627,  4  S.  W.  5. 

e  Chicago,  St.  L.  &  P.  R.  Co.  v.  Bills,  104  Ind.  13,  3  N.  E.  611; 
State  V.  Ross.  26  N.  J.  Law,  224;  Philadelphia,  W.  &  B.  R.  Co.  v. 
Larkin,  47  Md.  155;  Haman  v.  Railway  Co.,  35  Neb.  74,  52  N.  W. 
830;  International  &  G.  N.  Ry.  Co.  v.  Leak,  64  Tex.  654;  Bourke  v. 
Railroad  Co.  (Pa.)  1  Lack.  Leg.  Rec.  108.  Though  a  trespasser  on  a 
train  has  not  gained  the  interior  of  the  car,  and  is  standing  on  the 
steps,  the  conductor  has  no  right  to  eject  him  in  such  a  manner  as  to 
endanger  life  or  limb.  Kline  v.  Railroad  Go.,  39  Cal.  5S7.  If  more 
force  than  necessary  is  used  in  ejecting  a  person  wrongfully  on  the 
train,  resulting  in  stunning  or  paralyzing  him,  so  that  he  is  incapable 
of  taking  care  of  himself,  and  because  of  such  incapacity  he  falls  into 
mud  and  water  alongside  of  the  track,  and  is  drowned,  the  company 
is  liable.     Gill  v.  Railroad  Co.,  37  Hun  (N.  Y.)  107.     A  colored  wo- 

(830) 


Ch.  24)  ■        EJKCTiox.  §  331 

This  is  but  the  application  of  an  old  principle,  «>1«1  as 
The  hiw  itself,  to  a  modern  instante;  fur  ii  lias  ewv 
been  the  law  that  no  man  has  a  ii«;ht  t<>  cmplov  un 
necessary  force  in  doinu  anv  in-t."  EvtMi  a  tn'spasser 
cannot  be  ejected  from  a  train  withcnit  a  rras.. liable  re- 
gard for  his  safety/  It  is  nnivcrsally  lu-ld  that  the 
fact  that  one  is  a  trespasser  docs  not  justify  his  cjw- 
tion  from  a  train  while  in  rapid  motion.*     So  the  fact 

man  who  is  ejected  from  a  waiting  room  set  apart  for  wlilto  pnsseu- 
gei-s  may  recover,  if-  tlie  ejectiou  was  doue  with  unm-ces-^ary  force 
and  violence.  Rose  v.  Railway  Co.,  70  Miss.  VJ:.,  1-'  S.iulh.  825.  In 
mi  action  by  a  passenger  for  forcible  ejection  from  a  strtn-t  ear,  evi- 
dence is  adniissilile  as  to  the  continuance  of  the  assault  by  the  con- 
ductor, to  show  the  injuries  he  then  received,  to  throw  light  on  the 
<  haracter  of  the  transaction,  the  amount  of  force  used,  and  tlie  spirit 
and  method  adopted  by  the  conductor  in  his  attempt  to  execute  what 
he  believed  to  be  his  duty.  Denver  Tramway  Co.  v.  Reed,  4  Colo. 
App.  500,  36  Pac.  557. 

6  Chicago,  St.  L.  &  T.  R.  Co.  v.  Bills.  104  Ind.  V.\,  3  N.  K.  C,\\. 

7  Arnold  V.  Railroad  Co.,  115  Pa.  St.  1.'.5.  S  Atl.  213.  In  ejecting 
a  trespasser  from  a  train,  the  train  hnii.ls  shouhl  use  n>asonat»le  and 
..rdinary  care  not  to  injure  him.  II..uston  &  T.  C.  R.  Co.  v.  Grigsby 
(Tex.  Civ.  App.)  35  S.  W.  S15. 

8  Lake  Erie  &  W.  R.  Co.  v.  Matthews,  i:'.  Ind.  .\pp.  355.  41  N.  E. 
.S42;  Harlinger  v.  Railroad  Co.,  15  N.  Y.  Wkly.  Dig.  3;.-j.  alhrm,-.! 
fi2  N.  Y.  OGl;  Law  v.  Railroad  Co..  32  Iowa,  5.34:  State  v.  Kimi.-y. 
34  Minn.  311,  25  X.  W.  705;  Te.xas  &  P.  Ry.  Co.  v.  Mother.  5  Tex. 
Civ.  App.  S7,  24  S.  W.  71).  Tlie  faet  that  a  l)ny  is  a  trespasser  does 
not  warrant  a  railroad  employ*'  in  kicking  liini  li-n.  tlie  train  while  In 
motion.  Rounds  v.  Railn.nl  C..,  r,i  N.  Y.  1--...  .Mtlinnii.g  3  Hun  (N. 
Y  I  329,  5  Thomp.  &  C.  (N.  Y.)  475.  An  a<li..n  may  be  nialnlalnc.l 
against  a  railway  comiiany  for  forcibly  ejecting  a  .lisord  rly  passenger 
while  the  train  is  in  motion,  tliov  gli  n.)  special  Injury  was  occasiono.l 
thereby.  The  plaintiff  is  entitled  to  re<'ovcT  such  dainagcs  as  the  Jury 
shall  allow  fcr  the  unjiisliliable  assault,  s.ibje.i  m  the  power  of  the 
court  to  set  the  v.-nlid  asi.le  in  case  It  shoul.l  be  ...ves.slve.  opi.en 
heimer  v.  Railway  Co.,  (i3  Hun,  (^!3,  \>i  N.  V.  Su|  i-.  HI. 

(s:n) 


§  835  CARRIERS  OF  PASSENGERS.  (CIl.  24 

that  a  passeiijier  on  a  street  car  uses  iiulecent  or  pro- 
fane langna«ie  does  not  justify  the  condnctov  in  push- 
ing or  throAvinjj;  him  from  the  car  while  in  motion."  So 
the  emph)3'es  on  a  street  car  have  no  ri<;ht  to  throw 
a  bov  stealing  a  ride  from  the  car  whih^  in  motion,  or 
to  so  violently  assanlt  or  frighten  him  as  to  canse  him 
to  fall  from  the  car, 


10 


§  335.     SAME— RESISTANCE     OF  PASSENGER. 

As  has  heretofore  been  stated,  a  passenger  right- 
fully on  a  train  has  a  right  to  resist  ejection.^  So  a 
person,  though  wrongfully  on  a  train,  is  justified  in 
resisting  an  attempt  to  eject  him  while  the  train  is 
in  motion." 

But  violence  on  the  part  of  a  passenger  in  resisting 
an  expulsion  rightfully  attempted  by  the  train  hands 
increases  the  violence  necessary  and  proper  to  be  used 
on  their  part.^  The  use  of  force  is  to  be  proportioned 
to  the  resistance  to  the  removal  by  the  trespasser.  If 
a  conductor  is  assaulted  while  ejecting  a  trespasser, 

9  Chicago  City  Ky.  Co.  v.  Pelletior,  1.34  111.  120.  24  X.  E.  770;  Id.. 
3.3  111.  App.  455. 

10  Austeth  V.  Railway  Co..  145  N.  Y.  210,  30  X.  E.  708.  affirming  9 
Misc.  Rep.  419,  30  X.  Y.  Supp.  107.  J^ee,  also.  Lovett  v.  Railroad  Co.. 
9  Allen  (Mass.)  557;  Barre  v.  Railway,  155  I'a.  St.  170,  20  Atl.  99. 
But  removing  a  trespasser  from  a  train  of  cars  moving  very  slowly 
is  not  negligence  or  wantoiniess  per  se.  Soutliern  Kan.  Ry.  Co.  v. 
Sanford,  45  Kan.  372,  25  Pac.  891. 

§  335.     1  See  ante,  §  326. 

2  Sanford  v.  Railroad  Co.,  23  X.  Y.  343,  reveising  7  Bosw.  (X.  Y.)  12.'. 

3  Coleman  v.  Railroad  (_'o.,  100  Mass.  100,  107;  Lillis  v.  Railway 
Co.,  64  Mo.  464;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Gants,  38  Kan.  60S. 
17  Pac.  54. 

(832) 


Ch.  24)  EJECTION.  §  ."JSG 

he  may  also  assault  his  assailant.  A  tfmduridi-  is 
not  devested  of  the  rijiht  of  self-defense  1>\  his  <»t1ire. 
If  in  danjier,  from  his  assailant,  of  death  or  uic-ai 
bodilv  harm,  he  niav  meet  force  with  fnice.  if  a  tun- 
diu-tor,  while  in  disehai'<:,'e  of  his  duly  to  thr  rail- 
road company,  is  assanlted,  so  thai  j»ei-stiiial  injury 
is  being  done  him,  he  mav  strike  until  the  daiiLirr  is 
averted;  and,  when  the  injuries  t(»  the  assaihini  are 
the  result  of  such  self-defense  bv  the  ceiuhKittr.  ilie 
jury  are  not  required  to  nicely  weigh  such  injuries 
to  the  assailant,  to  see  whether  the  punishment  he  re- 
ceived was  too  severe.  AVhen  one  assaults  a  conductta- 
while  in  the  performance  of  the  duties  of  his  dttiee, 
and  in  repulsing  such  force  the  conductor  injures  the 
assailant  severely,  the  conductor,  when  his  conduct 
is  being  considered  by  the  jury,  is  not  snltject  to 
punishment  for  such  injuries,  unless  greatly  (lisjuo- 
portioned  to  the  violence  offered  him,  and  unless  the 
injuries  w^ere  inflicted  wantonly  or  maliciously.* 

§  336.     SAME— ORDERS  AND  THREATS. 

To  enable  a  passenger  to  recover  for  wrongful  ex- 
pulsion, it  is  not  necessary  that  the  condudor  should 
have  put  his  hands  on  him.  A  conductoi-  may  expel 
a  passenger  as  effectually  by  oi-dering  him  olT  as  by 
pushing  him  off.     He  is  a  man  of  autluuity,  and  may 

4  Moore  v.  Itailroad  Co.,  'AH  S.  (".  1,  16  S.  E.  781.  A  co.iiplnliit  whl.  li 
allojres  that  piaintift'  was  ejected  with  such  violeuee  m.s  1(»  l)e  thrown 
to  the  ground  cannot  lie  sustjiined  on  the  tlicory  that  unneci-ssary 
force  was  used,  since  it  may  lie  that  Hit-  n.i-cc  \v:is  rendered  neci-snry 
by  Ills  own  resi.stan<e.  CliicaKO,  St.  L.  cV  1'.  K.  Co.  v.  Hills,  mi  in  1. 
13,15,  3N.  E.  <)11. 

V.  1  Kj/r.cAiM'.\s. — 53  (833) 


§  336  CARRIERS  OF  PASSENGERS.  (Ch.  24 

exert  that  authority  by  words  as  well  as  by  any  phys- 
ical force. ^  But  where  a  passeuger  is  wrongfully 
on  a  train,  the  imperative  manner  and  form  of  speech 
of  the  conductor  in  informing  her  that  she  must  get 
off  are  not  actionable,  in  the  absence  of  violence  or 
other  misconduct,  though  the  fright  caused  by  such 
language  produced  sickness.- 

§  330.  1  Central  Railroad  *:  Banking  Co.  v.  Roberts.  91  Ga.  513.  18 
S.  E.  31."i;  (Jeorgia  Railroad  &  Banking  Co.  v.  Eskew,  86  Ga.  041,  12 
S.  E.  1001. 

2  New  York,  L.  E.  &  W.  Ry.  Co.  v.  Bennett,  1  C.  C.  A.  541.  .50  Fed. 
490.  In  tliis  case  it  was  .said:  "Tlie  law  is  not  so  unreasonable  as 
to  exact  from  the  conduct(jr  of  a  passenger  train,  or  the  master  of  a 
steamshii),  upon  whose  vigilanre  and  competency  the  lives  and  safety 
of  passengers  are  dependent,  a  rigid  observance  of  the  formal  ameni- 
ties of  social  life,  in  the  necessarily  hurried  dischai'ge  of  his  varied 
and  important  duties.  It  requires  tliat  he  shall  demean  himself  with 
civility,  and  shall  protect  passengers  from  insult  and  violence  fvoiu 
others.  Beyond  this,  it  has  no  standard  of  conduct,  no  code  of  man- 
ners. Of  necessity,  his  communications  with  his  passengers  are  in 
the  main  purely  of  a  business  nature.  He  has  scant  time  for  ex- 
planations; none  for  discu.-sion  or  loquacity.  The  natural  effect  of 
his  great  and  urgent  I'csponsibilitics  is  to  beget  a  characteristic  brevity 
and  bluntuess  of  manner  and  speech,  varying  in  degree  with  the  tem- 
perament and  circunisuuK  es  of  tlie  individual,  often  perhaps  displeas- 
ing to  the  sensitive  and  inexperienced  traveler,  yet  as  far  removed 
from  legal  censure  as  the  demand  of  a  lawful  right  in  terse  phrase. 
While  his  own  and  his  employer's  interest  would  be  best  served  by  a 
uniformly  complaisant  speech  and  demeanor,  the  mere  lack  of  botli 
is  not  insult;  nor  is  his  failure  to  gauge  his  address  to  the  sensibili- 
ties, teniperanicnt.  or  latent  ailments  of  his  passengers  actionable 
dereliction,  ^^'heu  called  upon  to  declare  the  invalidity  of  a  ticket,  or 
to  deny  a  pas-enger's  claim  to  transportation,  or  to  announce  his  duty 
to  eject  a  perscui  wlio  refuses  to  pay  fare,  if  he  uses  only  the  eus- 
tomary  plain  and  positive  diction  of  business,  his  employer  cannot 
be  mulcted  in  damages,  or  legally  reprehend(>d  for  his  p'ain  sjeakin,' 
or  peremptory  manner."  In  Stone  v.  Railway  Co.,  47  Iowa.  82,  it 
(S34) 


Ch.  24)  EJECTION.  §  33G 

A  question  sometimes  arises  as  to  the  ii<:lit  lo  re- 
cover for  injuries  sustained  in  jiiniinn.i:  frmii  a  imiv- 
inji'  train  or  street  car  in  (thcditMioe  in  ilic  oidti-  nf  ilu* 
conductor  or  driver.  It  is  ucnciall.v  held  iluii  a  rliild 
of  tender  Acars  mav  rccoNcr  l«>r  iniurirs  thus  sus- 
tained,  since  his  obedii^nce  is  naturally  to  be  ('XjxMtrd, 
without  regard  to  the  risk  lie  niiuhi  iiitiii'.  Sn.  mi 
order  by  a  conductor  to  a  1(»  \<'ai-  old  1mi\  to  <:^^t'i  oiT  a 
moving  train,  accompanied  wiih  a  sliou  or  d«Mii<>ii- 
stration  of  force  sufficient  to  impress  him  wiili  ihc 
belief  that  it  Avill  lie  used,  is  eipiivalcnt  to  iIh-  tin 
ployment  of  actual  force;  and  the  boy  cannot.  ;is  iii;ii 
ter  of  law,  'be  said  to  be  guilty  of  contributory  negli- 
gence in  obeying  the  order.*        The  same  principle  is 

was  held  that  a  passoufror  who  has  boon  rifihtfnlly  ojoctoil.  witlioiii 
unnecessary  force,  for  refusal  to  pay  fare,  cannot  complain  of  insulting 
or  (liiJcourteous  treatment  at  the  hands  of  the  company's  <"mpl<iy.'-v. 

3  I>ovett  V.  Railroad  Co.,  0  Allen  (Mass.)  ."."7;  Vickslnuy  \-  M.  K. 
Co.  V.  Philhps,  04  Miss,  ttfto.  2  South.  oM:  Sandfonl  v.  Railway  Co.. 
153  Pa.  St.  300.  25  Atl.  8:^3:    Biddlc  v.  Railway  Co..  IIJ  I'a.  Si.  .V.l. 

4  Atl.  485;  MeCahill  v.  Railway  Co..  5K;  .Mi<ii.  15li.  5.''.  .\.  \V.  ms; 
Mt.  Adams  &  E.  P.  I.  R.  Co.  v.  Doherty,  S  Ohio  (Mr.  Ct.  R.  IHU.  Hut  it 
is  for  the  jury  to  say  whether  defen;lant's  conductor  was  wantonly 
and  willfully  neslirC^-'i't  in  orderiu;:  a  ircsiiassinp  boy  to  K*'l  off  a  niov- 
Injr  train,  it  appeaiiuj?  that  he  Avas  m  lih'  lialiii  of  n<'tllnK  on  ainl  i-lT 
defendant's  runninj;  trains;  that  si'vcial  i.tiu'r  buys,  liis  cninpaiiions. 
had  just  aliphted  with  safety;    and  that  tlie  train  was  not  iiiovin;;  s.i 

fast  to  make  it  nofrlitrenfe  per  se  lo  ^'i-i  otV.     'lii iisc.n  v.   Itaiboad 

Co.,  72  .Miss.  715,  17  South.  •-"JU. 

4  Kline  v.  Railroad  Co.,  :;;•  Cal.  .".ST;    Texas  \   !'.  i:.\.  to.  v.  .Mnili.r. 

5  Te.x.  Civ.  App.  ST.  21  S.  W.  ~U.  IIk'  la't  dial  a  b<iy  was  a  tn-s- 
passer  on  a  I'n  i;:hl  irain,  >tealinK  a  lido,  is  iml  a  malorlal  ('Icnifni  In 
dot<  rminiuK  wlicilu'r  or  nctt  lie  was  uuilly  of  contrlbiiioiy  n('«lij,'ence 
in  obeying  the  conductor's  order  lo  h-avr  llio  iialii  while  In  motion. 
r,entun  v.  Railroad  Co.,  55  Iowa.  I'.n;,  s  N.  W.  .•i;;u. 

(s:{:,) 


oo 


■J^  CARRIERS  OF  PASSENGERS.  (Ch.  24 

generally  applied  to  adults.  While  a  mere  direction 
or  command  hj  the  agent  of  a  railroad  company  re- 
quiring a  trespasser  to  leave  the  train  does  not  amount 
to  force,  yet,  if  the  latter  acts  under  fear  of  it,  the 
effect  on  his  mind  is  the  same,  and  a  recovery  for  in- 
jury  sustained  in  obeying  the  order  is  not  prevented- 
by  the  fact  that  no  physical  force  was  used.^  So, 
though  a  person  is  wrongfully  on  a  train,  the  con- 
ductor has  no  right  to  compel  him,  at  the  point  of  a 
pistol,  to  jump  from  it  while  in  motion.*'  The  supreme 
judicial  court  of  Massachusetts  has,  however,  recently 
come  to  a  different  conclusion.  A  trespasser  stealing 
a  ride  was  discovered  by  a  brakeman,  who  was  on 

5  Southwestern  R.  v.  Singleton,  07  Ga.  300.  A  person  holding  a 
ticket  boarded  a  freight  train  not  allowed  to  carry  passengers,  believ- 
ing the  ticket  to  be  good  on  that  train.  The  conductor  ordered  him 
to  get  off  the  train  while  it  was  in  moton.  refused  to  stop  the  train 
to  permit  him  to  get  off,  and  in  violent  and  insulting  language  ftireat- 
ened  to  eject  him  by  force  if  the  order  was  not  obeyed.  Held,  that 
such  pei-son  was  not  <-hargeable  with  contributory  negligence  in  jump- 
ing from  the  train  to  avoid  ejection  by  force.  Boggess  v.  Railway 
Co..  37  AV.  Va.  297,  10  S.  PI  .52.">.  The  legal  liability  of  the  defendant 
is  the  same,  whether  plaintifE  was  pushed  oft'  by  the  conductor  while 
the  train  was  in  motion,  or  got  oft  in  obedience  to  the  order  of  the 
conductor,  who  was  not  only  able,  but  evidently  determined,  to  en- 
force it.  Brown  v.  Railroad  Co..  00  Mo.  58.S.  A  weak-minded  tres- 
passer on  a  freight  train,  who  jumps  from  the  moving  train  on  being 
told  by  a  brakeman,  who  ordered  him  oft',  that,  if  he  did  not  obey,  the 
brakeman  would  get  a  gun  and  shoot  him.  is  justitied  in  acting  on  the 
threat,  and  may  recover  for  injuries  sustained,  though  there  was  no 
gun  on  the  train.  Houston  &  T.  C.  R.  Co.  v.  tJrigsby  (Tex.  Civ.  App.) 
35  S.  W.  815. 

c  Gallena  v.  Railroad,  13  Fed.  110.  But  a  passenger  who  refuses  to 
pay  fare,  resists  ejection,  and  threatens  to  kill  the  conductor,  is  not 
entitled  to  damages  be(  ause  the  conductor  presented  a  pistol  at  him 
and  spoke  of  him  as  a  coward.     Harrison  v.  Fiuk,  42  Fed.  787. 

(sao) 


Ch.  24)  FJEJTiox.  §  337 

another  car.  The  brakemaii  ordered  him  (»ir,  l.iu  In* 
disobeyed  the  order.  The  bi-akemau  rcpcatt'd  it, 
threateuing  to  throw  liiiii  olT,  at  the  same  time  rais- 
ing a  cltib.  He  renioiisi  I  ;ih'il  wiih  ilic  lnakcmaii,  slai 
ing  that  tlie  train  was  iiin\iii^  too  fast,  an<l  ciiircat- 
ing  him  to  stop  the  train.  The  luakrman  rrpratcd 
liis  threat,  and  made  a  movement  lowards  ]»laiiiiilT, 
Avith  his  ehib  upraised.  Tlier«'U|M»n  |ihiiniitV  aiit-mpi 
ed  to  aliglit  from  the  train,  \\  hicli  was  iiimiiim  ciglii 
or  ten  miles  an  hour,  ami  was  injuivd.  Ii  was  held 
that  plaintiff's  own  consciousness  of  wrongdoing,  ami 
his  fear  of  punishment  under  the  hiw,  <»|tciatcd  to 
gether  with  the  order  in  inducing  him  to  take  ihr  risk 
of  jumping,  and  were  so  inseparably  (oimeeted  with 
the  conduct  of  the  brakeman,  in  riiiiiishiug  one  of  ihr 
m(>tives  which  determined  his  clioico  to  jump  vnthcr 
than  remain  or  go  forward,  that  they  mnsi  he  lakcii  as 
contributing  causes  of  the  accident,  aud  therefore  bar- 
red a  recovery.^ 

§  337.  SAME— PROVINCE  OF  COURT  AND  JURY. 

Generally,  the  question   wiiethor  (»i-    not    oxrrssivc 
force  was  used  in  i-cmoving  a  tr(^i)ass('r  li-om  a  train 

is  one  of  fact  for  the  jury.     This  is  in von  w  hci-.- 

blows  are  struck,  })rovid('(l  ihcy  wen-  n-iKh-rrd  m-rrs 
sary   by  the  passenger's   resistance;    and   it    is   t  iror 
to  instruct  that  striking  blows  is  illegal.'     So,  whcihci- 

7  Plaiiz  V.  Railroad  Co.,  157  Mas.^.  377,  li'2  S.  K.  .Tit;. 

§  •AM.  1  Colciuan  v.  IJailioa.l  r<>.,  km;  Ma-^s.  icn,  n;i.  Tli.'  i\ws- 
turn  whetiicr  the  cunduetnr  iiro|i«'iiy  disclinr^cil  Ids  dul.v  In  <'X|Mdllu>: 
a  passenger,  whose  ticket  did  not  i-niitle  hiiu  to  ride  .mi  iIk-  train. 

(8.-J7) 


§  3"j8  carriers  of  passengers.  (Ch.  24 

it  is  due  and  proper  exercise  of  the  right  to  eject  for 
the  conductor  of  a  street  car  to  attempt  to  remove 
a  disorderly  passenger  while  the  car  is  in  motion,  is 
not  a  question  of  law  for  the  court,  but  of  fact  for  the 
jury,  and  should  be  determined  by  them  upon  all  the 
evidence,  including  the  rate  of  speed  at  which  the  car 
was  moving.^ 

§  338.     REFUNDING  FARE. 

It  has  been  held  that  on  ejecting  a  person  from  a 
train,  who  has  paid  the  whole  or  any  part  of  his  fare, 
the  carrier  must  refund  it,  less  the  amount  due  for 

from  the  cars,  between  the  track.s  of  a  raih-oad.  on  a  very  dark  night, 
at  a  way  station,  is  for  the  jury.  Everything  depends  on  the  facts 
and  circumstances.  Arnold  v.  Uailroad  Co..  ll.j  Pa.  St.  1.35,  8  Atl. 
213.  Wliere  a  conductor  stops  his  train  to  put  a  female  passenger  off 
for  refusal  to  pay  fare,  and  on  her  failure  to  get  off  he  takes  hold  of 
her  arm,  asks  her  to  come,  and  not  delay  the  train,  and  lifts  her 
down,  the  jury  is  warranted  in  finding  the  removal  to  be  forcible, 
thotigh  the  conductor  testifies  that  he  merely  assisted  her  to  alight. 
Curtis  V.  Railroad  Co.,  87  Iowa,  622.  54  N.  W.  339. 

2  Murphy  v.  Railway  Co.,  118  Mass.  228.  Whether  or  not  a  con- 
ductor is  guilty  of  negligence  in  putting  a  person  off  a  car  just  after 
the  train  has  started  from  a  depot,  and  while  its  motion  is,  scarcely 
perceptible,  is  a  question  of  fact  for  the  jury,  and  it  is  error  for  the 
court  to  charge  that  such  act  is  negligence.  Meyer  v.  Railroad  Co.. 
40  Mo.  151.  A  servant  of  a  railroad,  in  the  performance  of  his  duty 
in  removing  a  ti'espassing  boy  from  a  car,  is  bound  to  use  ordinary 
care;  and  when  he  pulls  the  boy.  clinging  to  the  ladder  of  the  car. 
from  the  train  while  in  motion,  and  the  boy  falls  under  the  car  and  is 
injured,  the  question  of  negligence  is  for  the  jury.  Brill  v.  Eddy, 
115  Mo.  596,  22  S.  W.  488.  The  fact  that  a  train  was  moving  at  the 
rate  of  20  miles  an  hour  when  a  passenger  was  removed  from  one  car 
to  another  does  not,  as  matter  of  law,  render  the  removal  unreasonable 
or  wrongful,  but  the  question  is  one  of  fact  for  the  jury.  Marquette 
V.  Railroad  Co.,  33  Iowa,  562. 
(838) 


<^ii-  24)  EJECTION.  §  aas 

the  ilistance  traveled  to  \hv  i»lar<'  of  (•j»Mii..ii.'  Tlnis, 
Mliere  a  ooiulnctor  ejects  an  adult  haviiii:  in  «  liaiiii- 
a  child,  for  refusal  to  ])a.v  the  child's  f;irf.  it  is  his 
duty,  before  the  ejection,  lo  return  or  <»n«  r  to  r.nnii 
to  such  person  the  value  of  the  nnustnl  poriion  of  the 
ticket.-  It  has  even  been  held  that  the  repavim-ut  of 
fare  is  a  condition  prectMlcut  to  the  ri«::ht  to  cxprj, 
and  a  return  of  the  money  iunuediately  after  tin-  rx- 
pulsion  will  not  relieve  the  carrier  from  liability.'' 

lUit  it  has  been  held  that   by   refusiu<i   to   t<»iuply 
with  the  reasonable  rejiulations  of  the  company  a  |>as 
senger  forfeits  his  right  to  ride  on  t  lie  train;  and  Ihiicc. 
on  his  ejection,  the  conductor  is  not  bound  to  rrfumi 
to  him  the  value  of  the  ticket  from  the  jtlacc  of  .jcc 
tion  to  destination.*      So  it  has  been  liehl   tluit,  even 
if  a  conductor  has  no  right    t(»  take  up   a    iionifans- 
ferrable  ticket   when   presented   by  one   not    the  orig 
iual  purchaser,  yet  the  ludder  has  no  tight  to  demand 
a  return  of  the  ticket  as  a  condition  precedent  to  his 
paying  fare.     It  was  the  li(»hlei's  duly  to  leave  the 
train  or  pay  his  fare,  and   then   pursue   his   remedy 
against  the  carrier   for   wrongfully    wit  lihohling    the 
ticket." 

The   California   Code"    provides   that,   after   haviiii: 

§  ;;:iS.      i  Tlmrstou  V.  Kailroiul  ("<..,    t   IMll.  :;_'l.   I'.-.l.  r:i>.   No.    U. 
Oil);    Wanlw.'ll  v.   Kailniiid  ("o..  AC  .Minn.  .".14.    I'.»  .\.   W.  jot;;    ||..ir 
1  aucr  V.  Itailroad  ( "o..  .VJ  Iowa.  ."U-J.  :;  .\.  W.  IJl:    l5:iiiiiiiorf.  I'.  \  C. 
K.  Co.  V.  .McUoiiald.  OS  Ind.  ^^^*^>. 

-  I  al«'  Shore  A:  ^I.  S.  My.  Co.  v.  Ormloiir  HHiioi   !.'>  .\.  i:.   117. 

•■i  \.an1%v«-il  V.  Kailway  Co..  tc  .Minn,  .".H.   I'.t  N.  W.  J'MI. 

*  (■;•<»«< tiy  V.  Itailway  Co.  duwai  H.'  .\.  W.  .->:;■_'. 

r.  ]:.•  hilly  v.  Itailway  Co.  (.Minn.t  <;.s  N.  \V.  s.".;!. 

*i  C.v.  Code  Cai.  §  21M0:    C(.ni|i.  Laws  ]i:dc.  ISsT.  j  ;;s;i7. 

(.S31)) 


§    339  CARRIERS   OF   PASSENGERS.  (Ch.    21 

ejected  a  passenger,  a  carrier  has  no  rioht  to  reqnire 
the  payment  of  any  part  of  his  fare.  It  has  accord- 
ingly been  held  that,  before  a  conductor  can  expel  a 
passenger  for  refusal  to  pay  full  fare,  he  must  return 
the  fare  which  he  has  actually  received."  But  where 
a  passenger,  after  riding  some  distance  in  a  chair  car 
without  paying  the  extra  fare  required  by  the  com- 
pany's rules,  leaves  the  train,  and  discontinues  his 
trip,  rather  than  continue  on  his  journey  in  another 
car,  the  fact  that  his  ticket  was  not  returned  to  him 
does  not  entitle  him  to  damages  as  for  an  ejection,  but 
his  claim  must  be  for  a  return  of  the  ticket  money.® 

§  339.     DUTY  OF  EJECTED  PASSENGER. 

A  passenger  who  is  wrongfully  put  off  a  train  by  a 
conductor  is  not  bound  to  wait  for  the  next  train  at 
the  station  where  she  was  put  off,  and  it  is  not  negli- 
gence for  her  to  undertake  to  walk  back  to  the  station 
whence  she  started.'  But  it  is  the  duty  of  a  passen- 
ger who  is  wrongfully  ejected  from  a  train,  and  placed 
upon  the  track,  to  leave  the  track  at  the  earliest  prac- 
ticable opportunity  that  a  reasonably  prudent  man 
would  discover  and  seize  upon;  and  the  burden  of 
proof  that  he  did  so  is  upon  hini.- 

T  Blaiifl  V.  Railroad  Co.,  65  Cal.  f)2().  4  Pac.  072;    Id.,  55  Cal.  570. 

s  Wright  V.  Railroad  Co..  78  Cal.  301,  20  Pac.  740. 

§  830.  1  Malone  v.  Railrcad  Co.,  152  Pa.  St.  3D0,  25  Atl.  638.  See, 
also.  ante.  §  120. 

^  Ham  V.  Canal  Co.,  l.>j  Pa.  St.  548,  20  Atl.  757;    s.  c.  142  Pa.  St. 

017,  21  Atl.  1012.     In  this  case  a  passenger  was  wrongfully  ejected 

from  a  train  in  an  api  arcnt  wilderness,,  and  where  the  only  possible 

way  out  seemed  to  be  along  the  railioad  track.     He  was  ignorant  oi: 

(840) 


Cli.  24)  eji£ct:o.\.  §  330 

the  suirouiulius:  onur.tr.v.  .t.uI.  kmnving  of  no  openiiijr  by  which  he 
eoukl  pot  off  the  trark.  and  upon  the  travoh'il  road,  he  took  the  trnok 
upou  which  he  would  face  approaching  trains.  He  followed  it  until 
he  came  to  a  liridsre.  and  in  crossing  ilic  hritlu'c  he  was  struck  by  a 
loijniotive  and  killed.  The  evidence  as  to  tlie  distance  he  walketl  va- 
ried, but  the  lowest  estimate  placed  it  at  about  half  a  mile.  There  was 
evidence  on  behalf  of  defendants  that  there  was  a  travfled  road 
whi(  h  could  easily  be  seen  from  the  point  where  deceased  was  put  off 
The  Train.  Held.  That  the  case  was  for  the  jury,  and  their  verdict  in 
plaiuTift's  favor  would  not  be  disturbed. 

(S41) 

END  OF  VOL.  1 


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